CIHM 
Microfiche 
Series 
({Monographs) 


ICIMH 

Collection  de 
microfiches 
(monographies) 


Canadian  Inatitutt  for  Hiatorical  Microraproductiona  /  Inatitut  Canadian  da  microraproductiona  hiatoriquaa 


Technical  and  Bibliographic  Notes  /  Notes  techniques  et  bibliographiques 


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copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any  of 
the  images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checked  below. 


0 

n 


2] 

D 
D 
D 
D 


D 


D 


Coloured  covers  / 
Couverture  de  couleur 

Covers  damaged  / 
Couverture  endommag^e 

Covers  restored  and/or  laminated  / 
Couverture  restaur^  et/ou  peliiculie 

Cover  title  missing  /  Le  titre  de  couverture  manque 

Coloured  maps  /  Cartes  g^ographiques  en  couleur 

Coloured  init  (i.e.  other  than  blue  or  black)  / 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations  / 
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Bound  with  other  material  / 
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I'ombre  ou  de  la  distorsion  le  long  de  la  marge 
int^rieure. 

Blank  leaves  added  during  restorations  may  appear 
within  the  text.  Whenever  possible,  these  have  been 
omitted  from  filming  /  II  se  peut  que  certaines  pages 
blanches  ajout^es  lors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  lorsque  cela  ^tait 
possible,  ces  pages  n'ont  pas  6\6  film^es. 

Additional  comments  / 
Commentaires  suppl^mentaires: 


L'Institut  a  microfilm^  le  meilleur  exemplaire  qu'il  lui  a 
6\6  possible  de  se  procurer.  Les  details  de  cet  exem- 
plaire qui  sont  peut-dtre  unk]ues  du  point  de  vue  bibli- 
ographkjue,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  modification  dans  la  mdtho- 
de  normale  de  filmage  sont  indk^u^s  ci-dessous. 

I     I  Cotoured  pages  /  Pages  de  couleur 

I I  Pages  damaged  /  Pages  endommagtes 


D 


Pages  restored  and/or  laminated  / 
Pages  restaur^s  et/ou  peilicui^es 


r~V  Pages  discoloured,  stained  or  foxed  / 
U-i  Pages  dteolor^es.  tachet^es  ou  piques 

I     I  Pages  detached  /  Pages  d^tach^es 

I  \/\  Showthrough  /  Transparence 

I      I  Quality  of  print  varies  / 


D 

D 


D 


Quality  indgale  de  I'impression 

Includes  supplementary  material  / 
Comprend  du  materiel  suppl^mentaire 

Pages  wholly  or  partially  obscured  by  errata  slips, 
tissues,  etc.,  have  been  refilmed  to  ensure  the  best 
possible  image  /  Les  pages  totalement  ou 
partiellement  obscurcies  par  un  feuillet  d'errata,  une 
pelure,  etc.,  ont  i\6  filmies  k  nouveau  de  fafon  k 
obtenir  la  meilleure  image  possible. 

Opposing  pages  with  varying  colouration  or 
discolourations  are  filmed  twice  to  ensure  the  best 
possible  image  /  Les  pages  s'opposant  ayant  des 
colorations  variables  ou  des  decolorations  sont 
film^es  deux  fois  afin  d'obtenir  la  meilleure  image 
possible. 


This  Item  It  filmed  at  the  reduction  ratio  checked  below  / 

Ce  document  est  (ilmi  au  taux  de  reduction  indlqui  cl-de<sous. 


10x 

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22x 

26x 

30x 

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20x 

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Th«  copy  filmed  here  has  b—n  reproduced  thanks 
to  tha  ganarosity  of: 

Stauffer  Library 
Queen'*  University 

Tha  imagas  appearing  hare  are  tha  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specif icationa. 


Original  copies  in  printed  peper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  laat  page  with  a  printed  or  illuatratad  imprea- 
sion.  or  tha  back  cover  when  appropriate.  All 
other  original  copiea  are  filmed  beginning  on  tha 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  writh  e  printed 
or  illuatratad  impression. 


The  laat  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^  (meaning  "COfi- 
TINUED").  or  the  symboi  V  (meaning  "END"), 
whichever  appliaa. 

Mapa.  plates,  charta.  etc..  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


L'exempiaire  filmA  fut  reproduit  grice  k  la 
g*n4rosit4  de: 

Stauffer  Library 
Queen's  University 

Les  images  suivantes  ont  txt  raproduites  svec  le 
plus  grand  soin.  compta  tenu  de  la  condition  at 
da  la  natteti  da  rexemplaira  film«,  at  en 
eonformit*  avac  lea  conditions  du  contrat  de 
fllmaga. 

Les  exemplairea  originaux  dont  la  couverture  en 
papier  est  imprim«e  sont  film«s  en  commencant 
par  la  premier  plat  at  en  terminant  soit  par  la 
darniAre  page  qui  comporta  une  empreinte 
d'impreasion  ou  d'illustration.  soit  par  le  second 
plat,  salon  la  cas.  Toua  les  autres  axemplaires 
originaux  sont  filmte  en  commencant  par  la 
premiere  page  qui  comporta  una  empreinte 
dimpression  ou  d'illusuation  at  en  terminant  par 
la  derni4re  page  qui  comporta  una  telle 
empreinte. 

Un  dee  symboles  suivants  apparaitra  sur  la 
darnlAre  image  de  cheque  microfiche,  sslon  la 
cas:  le  symboie  — ^  signifie  "A  SUIVRE".  le 
symbole  ▼  signifie  "FIN". 

Les  cartaa.  planchea.  tableaux,  etc..  peuvent  itre 
filmto  i  des  taux  da  reduction  diff«rents. 
Lorsque  le  document  est  trop  grand  pour  Atra 
reproduit  en  un  soul  clich*.  il  est  film*  A  psrtir 
de  I'angia  supArieur  gauche,  de  gauche  *  droite. 
et  de  haut  en  baa.  en  prenant  le  nombre 
d'imagea  nicaaaaira.  Lea  diagrammas  suivants 
illustrent  la  mAthodo. 


1  2  3 


1 

2 

3 

4 

5 

6 

MKROCOrr  MSOIUTION   TBT  CHART 

.ANSI  and  ISO  TEST  CHART  No.  2) 


Itt 

lit 


■  2^ 
|3j2 

■  16 
140 


1^1 


1^ 

■  2.0 
1.8 

1.6 


A 


/APPLIED  irvHGE    In 

1653   Eost   Mom    Street 

Ro-:h«i(#r,    New   York         U609       USA 

(716)  +82  -  0300 -Phone 

(716)  2B8'  5989  ~  Fa> 


Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERNATIONA!.  LAW 


THE  RECOMMENDATIONS  OF  HABANA 

CONCERNING  INTERNATIONAL 

ORGANIZATION 

AOOmo  BY  THE 

AMERICAN  INSTITUTE  OF  INTERNATIONAL  LAW 
AT  HABANA,  JANUARY  23,  1917 

ADDRESS  AND  COMMENTARY 

BY 

JAMES  BROWN  SCOTT 
frtiUtmt  tflhi  AmtritMt  tntlilalt  »f  luUrnmliMMt  Umu 


The  firit  and  grtattst  inttrttt  of  tk*  public  it 
alwoyt  jujiice.  All  want  equal  condilioiu  for  all 
and  futtice  is  this  equality.  The  cititen  only  de- 
sires law  and  the  observance  of  law.  Everybody 
among  us  knows  that  if  there  are  exceptions  they 
will  not  be  in  his  favor.  Thus,  all  fear  exceptions 
and  he  who  fears  exceptions  loves  the  law. 

Jean  Jacques  Rousseau. 


NEW  YORK 
OXFORD  UNIVERSITY  PRESS 

AMERICAN  ■RANCH:  35  WlIT  32MO  t''IIIT 

LONDON.  TORONTO    MILIOURNE.  AND  lOMBAY 

HUMPHRIV    MILrORD 

1917 


/7^-.-UL 


FOREWORD 

The  American  Institute  of  International  Law  held  its  second 
annual  meeting  at  Habana,  January  22-January  27, 1917,  upon 
the  invitation  of  the  Cuban  Government  and  under  the  aus- 
pices of  the  Cuban  Society  of  International  Law.  It  will  hold 
its  third  session  in  the  city  of  Montevideo  upo:;  the  invitation 
of  the  Government  of  Uruguay,  and  under  the  auspices  of  the 
Uruguayan  Society  of  International  Law,  in  the  course  of  1918, 
at  a  date  to  be  fixed  after  conference  with  the  Uruguayan 
Government  and  the  Uruguayan  Society  of  International  Law. 

The  Institute  adopted  sundry  recommendations  upon  inter- 
national organization  which  it  decided  should  bear  the  name 
of  "Recommendations  of  Habana  Concerning  International 
Organization";  and  in  addition,  referred  for  an  expression  of 
opinion  various  projects  to  the  national  societies  of  interna- 
tional law,  of  which  one  is  established  in  the  capital  of  each 
American  republic.  The  text  of  the  projects  and  of  the  action 
taken  in  each  case  is  contained  in  the  Final  Act  of  the  Insti- 
tute. 

The  address  on  the  Piatt  Amendment  and  Recommenda- 
tions on  International  Organization  was  delivered  in  sum- 
mary form  by  the  undersigned  as  President  of  the  Institute, 
at  the  opening  session  of  the  Institute  on  the  evening  of 
January  22,  1917,  at  which  the  President  of  the  Cuban 
Republic  presided  in  person.  The  recommendations  of  Habana 
concerning  international  organization  were  unanimously 
adopted  by  the  Institute  on  January  23,  1917,  and  they  are 
printed  as  adopted,  with  the  addition  of  a  commentary  for 
which  the  undersigned  is  responsible. 

The  American  Institute  of  International  Law,  in  its  Declara- 
tion of  the  Rights  and  Duties  of  Nations,  adopted  at  its  first 


371  r/ 


session,  in  the  city  of  Washington,  on  January  6,  1916,  en- 
deavored to  lay  a  flrm  foundation  upon  which  the  temple  of 
justice  may  be  raised  and  may  securely  rest,  and  in  the  recom- 
mendations of  Habana  concerning  international  organization, 
adopted  by  the  American  Institute  of  International  Law  at  its 
second  session  in  the  city  of  Habana  on  January  23,  1917,  it 
attempted  to  state  the  goal  of  its  endeavor  and  to  outline  the 
minimum  of  international  organization  consistent  with  the  ad- 
ministration of  international  justice. 

James  Brown  Scott. 
Washington,  D.  C, 
April  21.  1917. 


n 


i 


TABLE  OF  CONTENTS 

PAGE 

The  Piatt  Amendment — Recommendations  of  Habana 
Concerning  International   Organization 1 

Text  of  Recommendations  of  Habana  Concerning  Inter- 
national Organization  53 

Commentary  upon  the  Recommendations  Concerning  In- 
ternational Organization   56 

Appendix 

Constitution  of  the  American  Institute  of  International 

Law    go 

By-Laws  of  the  American  Institute  of  International  Law    87 
Officers  and  Members  of  the  American  Institute  of  Inter- 
national Law  95 


i!' 


THE  PLAIT  AMENDMENT-RECOMMENDATIONS  ON 
INTERNATIONAL  ORGANIZATION 
Mr.  President  and  Gentlemen  : 

It  is  almost  nineteen  years  ago  since  I  started  for  Cuba,  as 
I  then  thought,  in  response  to  a  caU  of  President  McKinley 
for  volunteers,  but  the  regiment  in  which  I  had  the  honor  to 
serve  as  a  private  was  attached  to  the  Philippine  expedition- 
ary forces,  and  it  is  only  today  that  I  have  arrived;  and  very 
happy  I  am  to  find  myself  at  last  in  the  beautiful  city  of 
Habana,  in  the  beautiful  island  of  Cuba,  and  to  see  wiUi  my 
own  eyes  the  capital  of  Cuba  Libre. 

You  will  beUeve  me  when  I  assure  you  that  this  is  no  ordi- 
nary event  for  me,  and  you  will  pardon  me  if  I  enter  some- 
what into  the  relations  between  Cuba  and  tiie  United  States, 
because  I  would  like  to  use  tiiem  "to  point  a  moral  and  adorn 
a  talc."  When,  in  1898,  President  McKinley  informed  Spain 
tiiat  the  situation  in  Cuba  was  intolerable  and  that  it  should 
not  be  continued,  and  when  Congress  directed  the  land  and 
naval  forces  of  Uie  United  States  to  be  used  in  order  to  se- 
cure the  independence  of  Cuba,  it  was  understood,  and  it  was 
so  stated,  that  the  war— for  war  it  was  to  be— should  be  one 
of  independence,  and  that  it  should  not  be  one  of  conquest. 
By  the  treaty  of  peace,  signed  December  10,  1898,  between 
Spain  and  Oie  United  States,  it  was  agreed  Uiat  Cuba  should 
be  occupied  by  forces  of  the  United  States,  but  Uie  United 
States  intended  then  and  always  that  Cuba,  after  a  period  of 
reconstruction,  should  be  handed  over  to  its  people. 

Let  me  quote  a  few  sentences  from  the  documents  in  order 
that  we  may  see,  from  official  sources,  the  facts  in  the  case. 

In  his  message  to  the  Congress  of  April  11,  1898,  President 
McKinley  recommended  that  the  United  States  should  inter- 


^    i  1 


vene  in  Cuba  "in  the  cause  of  humanity  and  to  put  an  end  to 
the  barbarities,  bloodshed,  starvation,  and  horrible  miseries 
now  existing  there  ;">  and  on  the  20th  the  Congress  adopted 
the  following  joint  resolution,  providing: 

First.  That  the  people  of  the  Island  of  Cuba  are,  and  of 
right  ought  to  be,  free  and  independent. 

Second.  That  it  is  the  duty  of  the  United  States  to 
demand,  and  the  Government  of  the  United  States  does 
hereby  demand,  that  the  Government  of  Spain  at  once 
relinquish  its  authority  and  government  in  the  Island  of 
Cuba  and  withdraw  its  land  and  naval  forces  from  Cuba 
and  Cuban  waters. 

Third.  That  the  President  of  the  United  States  be,  and 
he  hereby  is,  directed  and  empowered  to  use  the  entire 
land  and  naval  forces  of  the  United  States,  ...  to 
such  extent  as  may  be  necessary  to  carry  these  resolu- 
tions into  effect. 

Fourth.  That  the  United  States  hereby  disclaims  any 
disposition  or  intention  to  exercise  sovereignty,  jurisdic- 
tion, or  control  over  said  Island  except  for  the  pacifica- 
tion thereof,  and  asserts  its  determination,  when  that  is 
accomplished,  to  leave  the  government  and  control  of  the 
Island  to  its  people.' 

On  December  10,  1898,  the  treaty  of  peace  between  the 
countries  unfortunately  at  war  was  concluded  at  Paris,  and 
of  this  treaty  two  arheles.  the  1st  and  the  16th,  are  material  to 
the  present  question.    Thus,  the  first  reads: 

Spain  relinquishes  all  claim  of  sovereignty  over  and 
title  to  Cuba. 


^Foreifjn  Relationt  of  the  United  State*.  1898,  p.  757. 
*  United  State*  Statute*  at  Large,  Tol.  30,  pp.  738-9. 


And  as  the  Island  is,  upon  its  evacuation  by  Spain,  to 
be  occupied  by  the  United  States,  the  United  States  will, 
so  long  as  such  occupation  shall  last,  assume  and  dis- 
charge the  obligations  that  may  under  international  law 
result  from  the  fact  of  its  occupation,  for  the  protection 
of  Ufe  and  property. 

And  the  16th  Article  is  thus  worded: 

It  is  understood  that  any  obligations  assumed  in  this 
treaty  by  the  United  States  with  respect  to  Cuba  are  lim- 
ited to  the  time  of  its  occupancy  thereof;  but  it  will  upon 
the  termination  of  such  occupancy,  advise  any  Govern- 
ment established  in  the  Island  to  assume  the  same  obliga- 
tions.^ 

The  intention  of  the  United  States  was,  as  I  understand  it, 
that  Cuba  should  be  free,  that  it  should  not  fall  a  prey  to  a 
foreign  enemy,  that  a  government  should  be  established  which 
would  deal  justly  with  foreign  powers  across  the  seas,  so  that 
they  would  have  no  pretext  for  intervention;  and  that  this 
government,  republican  of  course,  representing  the  people  of 
Cuba,  their  hopes,  their  desires,  their  aspirations,  should  hus- 
band the  resources,  contribute  to  the  prosperity  of  the  island, 
and  administer  to  the  happiness  of  the  people  by  whom  and 
for  whose  benefit  it  was  to  be  created. 

An  illustrious  American  statesman  and  benefactor  of  Cuba, 
and  a  friend  of  Latin  America,  appreciating  what  the  relations 
between  the  two  countries  should  be,  drew  up  a  series  of  reso- 
lutions defining  those  relations  and  calculated  to  safeguard 
them  when  defined.  These  resolutions  are  commonly  known 
as  the  Piatt  Amendment;  but  it  was  the  mind  of  Elihu  Root 
which  conceived  them,  it  was  his  skill  which  drafted  them,  and 
it  was  his  hand  that  executed  them.    The  substance  of  the  reso- 

'  United  States  Statute)  at  Large,  rol.  SO,  pp.  IT3S,  1761. 


lutiona  he  regarded  as  euential  to  the  best  interests  of  the  two 
countries,  and,  that  there  might  be  neither  doubt  nor  miscon- 
ception, he  wished  them  to  be  made  the  law  of  each  country 
and  to  be  incorporated  in  a  treaty  between  the  two  republics. 

As  the  matter  is  one  of  historic  interest,  as  well  as  of  funda- 
mental importance,  1  shall  ask  your  indulgence  while  1  attempt 
to  trace  the  origin  of  the  Amendment  which  states  and  deflnes 
the  relations  between  Cuba  and  the  United  States  and  which 
is  capable  of  even  a  larger  application. 

As  the  time  drew  near  for  the  United  States  to  withdraw 
from  Cuba,  and  to  turn  the  island  over  to  its  people,  Mr.  Root, 
as  Secretary  of  War,  and  as  such  charged  with  the  handling 
of  Cuban  affairs,  considered  the  conditions  in  instructions 
of  February  9,  1901,  to  Major  General  Leonard  Wootl,  then 
Military  Governor  of  the  island,  and  stated  the  relations  which 
should  exist  between  Cuba  and  the  United  States  in  the  in- 
terest of  both  countries.  In  speaking  of  the  government  lo  be 
established,  he  said: 

It  is  plain  that  the  government  to  which  we  were  thus 
to  transfer  our  temporary  obligations  should  be  a  govern- 
ment based  upon  the  peaceful  suffrages  of  the  people  of 
Cuba,  representing  the  entire  people  and  holding  their 
power  from  the  people,  and  subject  to  the  limitations  and 
safeguards  which  the  experience  of  constitutional  govern- 
ment has  shown  to  be  necessary  to  the  preservation  of  in- 
dividual rights.  This  is  plain  as  a  duty  to  the  people  of 
Cuba  under  the  resoluUon  of  April  20, 1898,  and  it  is  plain 
as  an  obligation  of  good  faith  under  the  Treaty  of  Paris. 
Such  a  government  we  have  been  persistently  and  with 
all  practicable  speed  building  up  in  Cuba,  and  we  hope 
to  see  it  established  and  assume  control  under  the  pro- 
visions which  shall  be  adopted  by  the  present  convention.' 


>  The  Military  and  Colonial  Policy  of  the  United  Statei.  addreitet  and 
report!,  by  Elihu  Root.  p.  205>.     Harvard  University  Press,  I  St  Hi. 


5 


Mr.  F^ool  then  n'f«Tred  to  Ihe  attitude  of  the  United  States 
toward  Cuba  when  the  island  was  under  the  domination  or 
Spain,  and  the  unwillingness  to  allow  any  foreign  power  other 
than  Spain  to  hold  or  to  acquire  possession  of  Cuba.  '*The 
United  States  has,"  he  said,  "and  will  always  have,  the  most 
vital  interest  in  the  pre.ser>-ation  of  the  independence  which 
she  has  secured  for  Cuba,  and  in  preserving  the  people  of  that 
island  from  domination  and  control  of  any  foreign  power 
whatever."  Mr.  Hoot  next  entered  upon  an  examination  of 
the  conditions  upon  which  Cuban  independence  might  be 
maintained,  reaching  the  conclusion  that  the  preservation  of 
the  independence  of  Cuba  **must  depend  upon  her  strict  per- 
formance of  international  obligations,  upon  her  giving  due 
protection  to  the  lives  and  property  of  the  citizens  of  all  other 
countries  within  her  borders,  and  upon  her  never  contracting 
any  public  debt  which  in  the  hands  of  the  citizens  of  foreign 
powers  shall  constitute  an  obligation  she  is  unable  to  meet." 
The  role  which  the  United  States  should  assume  in  the  preser- 
vation of  this  independence  Mr.  Root  thus  stated: 

We  are  placed  in  a  position  where,  for  our  own  protec- 
tion, we  have,  by  reason  of  expelling  Spain  from  Cuba, 
become  the  guarantors  of  Cuban  independence  and  the 
guarantors  of  a  stable  and  orderly  government  protecting 
life  and  property  in  that  island.  Fortunately  the  condi- 
tion which  we  deem  essential  for  our  own  interests  is  the 
condition  for  which  Cuba  has  been  struggling,  and  which 
the  duty  we  have  assumed  toward  Cuba  on  Cuban  grounds 
and  for  Cuban  interests  requires.  It  would  be  a  most  lame 
and  impotent  conclusion  if,  after  all  the  expenditure  of 
blood  and  treasure  by  the  people  of  the  United  States  for 
the  freedom  of  Cuba  and  by  the  people  of  Cuba  for  the 
same  object,  we  should,  through  the  constitution  of  th»^ 
new  government  by  inadvertence  or  otherwise,  be  placed 
in  a  worse  condition  in  regard  to  our  own  vital  interests 


than  we  were  while  Spain  was  in  pouession,  and  Uic  peo- 
ple of  Cuba  should  be  deprived  of  that  protection  and  aid 
from  the  United  States  which  is  necessary  to  the  mainte- 
nance  of  their  independence.' 

After  a  further  consideration  of  the  question,  Mr.  Root  thus 
summed  up  his  observations  upon  this  subject: 

The  people  of  Cuba  should  desire  to  have  incorporated 
in  her  fundamental  law  provisions  in  substance  as  follow : 

1.  I'hat  no  government  organized  under  the  consti- 
tution shall  be  deemed  to  have  authority  to  enter  into 
any  treaty  or  engagement  with  any  foreign  power 
which  may  tend  to  impair  or  interfere  with  the  inde- 
pendence of  Cuba,  or  to  confer  upon  such  foreign 
power  any  special  right  or  privilege  without  the  con- 
sent of  the  United  States. 

2.  That  no  government  organized  under  the  consti- 
tution shall  have  authority  to  assume  or  contract  any 
public  debt  in  excess  of  the  capacity  of  the  ordinary 
revenues  of  the  island,  after  defraying  the  current 
expenses  of  government,  to  pay  the  interest 

3.  That  upon  the  transfer  of  the  control  of  Cuba  to 
the  government  established  under  the  new  constitu- 
tion Cuba  consents  that  the  United  States  reserve  and 
retain  the  right  of  intervention  for  the  preservation  of 
Cuban  independence  and  the  maintenance  of  a  stable 
government,  adequately  protecting  life,  property,  and 
individual  liberty,  and  discharging  the  obligations 
witli  respect  to  Cuba  imposed  by  the  Treaty  of  Paris 
on  the  United  States  and  now  assumed  and  under- 
taken by  the  Government  of  Cuba. 

4.  That  all  the  acts  of  the  military  government,  and 
all  rights  acquired  thereunder,  shall  be  valid  and  shall 
be  maintained  and  protected. 

5.  That  to  facilitate  the  United  States  in  the  per- 
formance of  such  duties  as  may  devolve  upon  her 

^  Ibid.,  p.  210. 


\U 


under  thr  foregoinij  provisions  and  for  her  own  de< 
fense,  the  United  States  may  acquire  and  hold  the  title 
to  land  for  naval  stations,  and  maintain  the  same  at 
certain  spcciflcd  points.* 

On  the  19th  of  February,  1901,  General  Wood  acknowledged 
the  receipt  of  Secretary  Root's  instructions  in  a  letter  which 
was  only  made  public  last  month,  and  in  which  he  informed 
Mr.  Root  that  he  had  laid  the  five  provisions  before  the  Con- 
stitutional Convention  and  in  which  he  suggested  to  Mr.  Root 
the  addition  of  an  article  concerning  sanitation.  On  the  first 
point.  General  Wood  said: 

On  receipt  of  the  instructions  by  cable  I  immediately 
assembled  the  Committee  on  Relations  to  Exist  between 
Cuba  and  the  United  States  and  made  known  to  them  the 
five  articles  or  provisions  which,  in  the  opinion  of  the 
Executive  branch  of  the  Government,  represent  the  wishes 
of  the  United  States  in  all  that  pertains  to  the  pr'  <  °d 
relations  between  the  Government  of  the  United  ^es 
and  the  people  of  Cuba. 

I  was  particularly  careful  [he  continues]  to  impress 
upon  them  that  Congress  might  in  its  wisdom  insist  upon 
different  conditions  or  relations,  but  that  the  proposition 
submitted  embodied  those  which  in  the  opinion  of  the 
Executive  branch  of  the  Government  should  exist  and  that 
they  were  the  only  ones  which  they  could  at  present  con- 
sider.' 


As  to  the  question  of  sanitation.  General  Wood  said : 

There  is  another  phase  of  this  Cuban  situation  which 
seems  to  be  of  vital  importance;  that  is  the  sanitary  con- 
ditions which  will  probably  exist  in  Havana  and  other 
large  cities  under  a  Cuban  government.    As  I  understand 


'/fctrf.,  p.  211. 
'/bjrf.,  p.   18«. 


II  the  purpoM  of  the  war  wn»  not  only  to  aiwiit  the  Cubanii. 
but.  in  a  general  scnBe.  to  nlratc  a  nuisance.  It  in  probable 
that  if  we  leave  the  Island  of  Cuba  without  a  definite 
agreement  with  the  government  to  come  in  reference  to 
the  maintenance  of  good  sanitary  conditions,  that  we  shall 
soon  find  Havana  and  all  other  large  cities  in  practically 
the  same  condition  of  sanitation  as  during  the  Spanish 
War  and  a  menace  to  our  Southern  seaports  and  the  con- 
sequent Interference  with  commerce  will  continue.  As  a 
rule,  the  people  of  the  island  are  Iit  nune  to  yellow  fever, 
and.  consequently,  take  little  interest  in  thr  elaborate  sani- 
tary precautions  which  have  been  Instituted  under  the 
American  rule  and  which  have  resulted  in  reducing  the 
death  rate  In  Havana  alone,  from  45  per  1000  as  an  averngc 
death  rate  In  times  of  peace  to  24  and  a  fraction.' 

To  General  Wood's  letter  of  the  19th,  containing  the  sug- 
gestion in  the  matter  of  sanitation.  Mr.  Root  replied  in  a  letter 
of  February  23d,  from  which  I  quote  a  paragraph  outlining 
the  action  which,  in  his  opinion,  the  Government  should  take 
in  the  matter  of  sanitation  and  which,  as  a  matter  of  fact,  it 
took  in  regard  to  the  entire  Cuban  situation: 

Your  letters  of  February  19th  have  been  received.  The 
official  one.  acknowledging  my  communication  of  Feb- 
ruary 9th.  and  treating  of  the  sanitary  question,  has  been 
read  to  the  President  and  also  to  Senators  Piatt  and 
Spooner.  Any  sanitary  control  involves  so  great  an  in- 
fringement of  the  independence  and  internal  government 
of  Cuba,  it  is  difficult  to  say  how  that  can  be  dealt  with 
consistently  with  the  Teller  Resolution  of  April  20,  1898; 
that  is  to  say.  how  it  can  be  dealt  with  except  by  Con- 
gress. It  will  not  be  lost  sight  of  in  the  treatment  of  the 
subject  here. 

Senator  Piatt,  to  whom  Mr.  Root  referred  in  this  very  ini- 
portant  letter,  was  Orville  H.  Piatt.  United  States  Senator  from 

'  Ibid.,  p.  lb.. 


Connecticut,  and  Chairman  of  the  Senate  Committee  on 
Cuban  Helations;  and  Senator  Spooncr,  to  whom  Mr.  Hoot 
likewise  refcrnd,  wus  John  C.  S|)«Mmer,  Seniitor  froni  Wis- 
conain,  and  an  influential  member  of  the  name  Committee. 
President  McKinley  approved  Mr.  Root's  original  instnictions 
and  the  additional  article  suggested  by  General  Wood.  Sena- 
tor Plott  as  Chairman  of  the  Committee  on  Cuban  Relations 
was  requested  by  the  President  and  Mr.  Root  to  take  charge  of 
the  proposed  legislation  and  to  introduce  the  instructions  and 
article  agreed  upon  as  an  amendment  to  the  Amy  Appro- 
priation Bill.  Senator  Piatt  complied  with  the  request,  intro- 
ducing them  with  slight  modifications  and  additions  as  an 
amendment  to  the  bill.  The  amendment  was  adopted  by  the 
Congress,  and  it  thus  became  statutory  law  of  the  United 
States,  March  2,  1901.  u»>*  'he  President's  approval  of  the 
bill  as  thus  amended. 
Let  me  read  the  so-called  Piatt  Amendment : 


That  in  fulfillment  of  the  declaration  contained  in  the 
joint  resolution  approved  April  twentieth,  eighteen  hun- 
dred and  ninety-eight,  entitled  "For  the  recognition  of 
the  independence  of  the  people  of  Cuba,  demanding  that 
the  government  of  Spain  relinquish  its  authori  y  and  gov- 
ernment in  the  island  of  Cuba,  and  to  withdraw  its  land 
and  naval  forces  from  Cuba  and  Cuban  waters,  and  di- 
recting the  President  of  the  United  States  to  use  the  land 
and  naval  forces  of  the  United  States  to  carry  these  reso- 
lutions into  effect,"  the  President  is  hereby  authorized  to 
"leave  the  government  and  control  of  the  island  of  Cuba 
to  its  people"  so  soon  as  a  government  shall  have  been 
established  in  said  island  under  a  constitution  which, 
either  as  a  part  thereof  or  in  an  ordinance  appended 
thereto,  shall  define  the  future  relations  of  the  United 
States  with  Cuba,  substantially  as  follows: 

I.  That  the  government  of  Cuba  shall  never  enter  into 
any  treaty  or  other  compact  with  any  foreign  power  or 


10 


powers  which  will  impair  or  tend  io  impair  the  indepen- 
dence of  Cuba,  nor  in  any  manner  authorize  or  permit 
any  foreign  power  or  powers  to  obtain  by  colonization  or 
for  military  or  naval  purposes  or  otherwise,  lodgment  in 
or  control  over  any  portion  of  said  island. 

II.  That  said  government  shall  not  assume  or  contract 
any  public  debt,  to  pay  the  interest  upon  which,  and  to 
make  reasonable  sinking  fund  provision  for  the  ultimate 
discharge  of  which,  the  ordinary  revenues  of  the  island, 
after  defraying  the  current  expenses  of  government,  shall 
be  inadequate. 

III.  That  the  government  of  Cuba  consents  that  the 
United  States  may  exercise  the  right  to  intervene  for  the 
preservation  of  Cuh.in  independence,  the  maintenance  of 
a  government  adequate  for  the  protection  of  life,  prop- 
erty, and  individual  liberty,  and  for  discharging  the  obli- 
gations with  respect  to  Cuba  imposed  by  the  treaty  of 
Paris  on  the  United  States,  now  to  be  assumed  and  under- 
taken by  the  government  of  Cuba. 

IV.  That  all  acts  of  the  United  States  in  Cuba  during 
its  military'  occupancy  thereof  are  ratified  and  validated, 
and  all  lawful  rights  acquired  thereunder  shall  be  main- 
tained and  protected. 

V.  That  the  government  of  Cuba  will  execute,  and  as 
far  as  necessary  extend,  the  plans  already  devised  or 
other  plans  to  be  mutually  agreed  upon,  for  the  sanita- 
tion of  the  cities  of  the  island,  to  the  end  that  a  recur- 
rence of  epidemic  and  infectious  diseases  may  be  pre- 
vented, thereby  assuring  protection  to  the  people  nnd 
commerce  of  Cuba,  as  well  as  to  the  commerce  of  the 
southern  ports  of  the  United  States  and  the  people  resid- 
ing therein. 

VI.  That  the  Isle  of  Pines  shall  be  omitted  from  the 
proposed  constitutional  boundaries  of  Cuba,  the  title 
thereto  being  left  to  future  adjustment  by  treaty. 

VII.  That  to  enable  the  United  States  to  maintain  the 
independence  of  Cuba,  and  to  protect  the  people  thereof, 
as  well  as  for  its  own  defense,  the  government  of  Cuba 


11 


will  sell  or  lease  to  the  United  States  lands  necessary  for 
coaling  or  naval  stations  at  certain  specified  points,  to  be 
agreed  upon  with  the  President  of  the  United  States. 

VIII.  That  by  way  of  further  assurance  the  government 
of  Cuba  will  embody  the  foregoing  provisions  in  a  per- 
manent treaty  with  the  United  States.^ 

The  relation  between  Mr.  Root's  instructions  of  Februarj'  9, 
1901,  to  General  Wood,  and  the  so-called  Plait  Amendment, 
and  the  respective  shares  of  Mr.  Root,  Senator  Piatt  and  Gen- 
eral Wood  in  its  authorship,  are  stated  by  Mr.  Root  himself  in 
the  following  passage  from  a  letter  which  he  wrote  me  under 
date  of  October  24,  1916: 


S 


IS: 


You  will  perceive  that,  with  trifling  changes  of  phrase- 
ology. Article  1  of  the  Piatt  Amendment  was  Article  1  of 
my  instructions;  Article  2  was  Article  2  of  the  instructions; 
Article  3  was  Article  3  of  the  instructions;  Article  4  was 
Article  4  of  the  instructions;  Article  5  was  the  sanitation 
provision  suggested  by  General  Wood  in  his  letter  to  me 
of  February  19;  and  Article  7  was  Article  5  of  the  instruc- 
tions. Article  6  of  the  Amendment  about  the  Isle  of  Pines 
and  Article  8  about  further  assurance  by  treaty  were  in- 
serted in  the  committee. 

On  June  12,  1901,  the  Constitutional  Convention  of  Cuba, 
then  in  session,  adopted  the  text  of  the  Piatt  Amendment  as  an 
integral  part  of  the  Constitution  of  the  Republic." 

The  so-called  Piatt  Amendment  is  therefore  a  statute  of  the 
United  States  and  a  provision  of  the  Cuban  Constitution. 

Finally,  in  order  that  the  law  common  to  the  two  countries 
should  be  binding  upon  both  in  their  mutual  intercourse  and 
relations,  they  form  the  sole  subject-matter  of  the  special 


'  United  Stntrs  Statutes  at  Large,  vol.  31,  pp.  897-8. 
°  Jos6   Ignacio   Rodriguez:  American   Conttitutiont,   vol.    II,  p.    146. 
Washington,  Ciovernment  Printing  Office,  1907. 


e; 


1!    : 


'*. 


12 


treaty  of  May  22.  1903.  between  the  two  countries,  in  which 
they  are  embodied  in  their  entirety.' 

The  so-called  Piatt  amendment,  therefore,  is  a  statutory, 
constitutional  and  diplomatic  right. 

It  is  not  my  purpose  to  comment  upon  these  articles,  other 
than  to  explain  the  sense  in  which  the  United  States  under- 
stood the  third  article,  for  Mr.  Root  wished  to  make  it  dear 
that  intervention  under  the  third  article  was  to  be  in  the  in- 
terest of  Cuba,  not,  as  is  often  the  case,  solely  in  the  interest 
of  the  intervening  power,  and  he  wanted  it  to  be  understood 
that  the  right  of  intervention  should  only  be  exercised  upon 
specific,  stated  grounds,  known  and  approved  in  advance  by 
the  two  countries,  before  the  articles  should  be  made  a  part 
of  the  Cuban  Constitution.  Therefore,  Mr.  Root,  as  Secretary 
of  War.  placed  the  following  gloss,  or  interpretation,  upon  the 
third  article  in  the  following  telegram  of  April  3. 1901.  and  had 
it  laid  by  General  Wood  before  the  Cuban  Constitutional  Con- 
vention, so  that  its  members  in  voting  the  third  article  should 
accept  it  in  the  sense  in  which  the  article  was  intended  to  be 
understood : 

You  are  authorized  to  state  officially  that  in  the  view 
of  the  President  the  intervention  described  in  the  third 
clause  of  the  Piatt  Amendment  is  not  synonymous  with 
intermeddling  or  interference  with  the  affairs  of  the 
Cuban  Government,  but  the  formal  action  of  the  Govern- 
ment of  the  United  States,  based  upon  just  and  substantial 
grounds,  for  the  preservation  of  Cuban  independence,  and 
the  maintenance  of  a  government  adequate  for  the  protec- 
tion of  life,  property,  and  individual  liberty,  and  adequate 
for  discharging  the  obligations  with  respect  to  Cuba  im- 
posed by  the  Treaty  of  Paris  on  the  United  States.^' 


'  United  States  Slatutet  at  Larpe,  vol.  aS,  p.  2248. 

'Annual  Report  of  the  Secretary  of  War  for  the  year  1901,  p.  48; 
The  Military  and  Colonial  Policy  of  the  United  Statet,  by  Elihu  Root: 
Cambridge,  Harvard  Press,  l!>lt;,  p.  214. 


13 


May  I  dwell  for  a  moment  upon  the  Piatt  Amendment  and 
upon  the  official  interpretation  of  it  given  by  its  author,  Mr. 
Root,  when  Secretary  of  War  and  representing  the  United 
States.    The  Piatt  Amendment  gives  the  United  States  a  right 
to  intervene  in  Cuba  for  the  protection  of  the  independence, 
not  for  the  destruction  of  the  independence,  of  Cuba,  thus 
creating  a  legal  right  as  distinguished  from  a  political  preten- 
sion.    The  Amendment  enumerates  the  conditions  in  which 
and  because  of  which  this  right  of  intervention  may  be  exer- 
cised.   But  in  order  that  there  might  be  no  doubt  as  to  the 
meaning  to  be  attached  to  the  right  of  intervention  and  its  ex- 
ercir'    Mr.  Root,  as  Secretary  of  War  and  as  representing  the 
United  States,  interpreted  the  third  article  of  the  Piatt  Amend- 
ment, and  this  interpretation  was  by  his  direction  laid  before 
the  Cuban  Constitutional  Convention,  so  that,  in  adopting  the 
Piatt  Amendment,  it  should  be  adopted  in  the  same  sense  ^y 
both  countries;  that  is  to  say,  the  sense  which  Mr.  Root  att.i'hed 
to  it  in  his  telegram  to  General  Wood,  then  Military'  Govt.  .or. 
and  by  him  laid  before  the  Constitutional  Convention,  which 
adopted  the  amendment  and  annexed  it  to  the  Constitution. 
The  Piatt  Amendment  creates  the  right;  Mr.  Root's  interpre- 
tation defines  the  right  and  limits  its  scope,  and  as  both  coun- 
tries must  have  understood  the  right  and  its  exercise  as  de- 
fined and  limited  by  Secretary  Root,  speaking  for  the  United 
States,  it  necessarily  follows  that,  without  violating  its  good 
faith,  neither  country  can  be  forced  to  accept  another  and  a 
different  interpretation  of  this  right.     As  I  conceive  it,  tb° 
Piatt  Amendment  not  only  guarantees  the  independence  of 
Cuba,  but  it  also  renders  its  guarantee  effective.     The  United 
States  deemed   it   wise,   indeed   necessarj-,   to   remove   from 
foreign  countries  all  pretexts  for  intervention  in  the  domestic 
concerns  of  Cuba.     In  obtaining  the  right  from  and  in  behalf 
of  Cuba,  the  I'nited  States  expressly  defined  the  right,  liniite<l 
its  scope,  and  stated  the  conditions  of  its  exercise. 


N 


•l! 


14 

On  the  twentieth  of  May.  1902.  the  American  flag  was  lowered 
and  the  American  troops  withdrew  from  a  sovereign,  free 
and  mdependent  Cuba.     In  1906.  the  United  States  felt  it 
necessary  to  avaU  itself  of  the  statutory,  constitutional  and 
treaty  right  to  intervene  in  Cuba  for  the  purposes  set  forth 
in  the  third  clause  of  the  so-caUed  Piatt  Amendment  and  in 
accordance  witii  Mr.  Root's  gloss  upon  it    On  March  31. 1909 
the  forces  of  the  United  States  again  withdrew  from  the  island* 
leaving  Cuba  for  the  second  time  to  its  newly  elected  and 
duly  constituted  authorities.     The  United  States  pledged  its 
good  faitii  that  Cuba  should  be  free  and  that  when  the  pur- 
poses of  tiie  first  occupation  were  accomplished  Uie  island 
should  be  turned  over  to  its  people  and  the  American  troops 
withdrawn,  and  the  United  States  kept  the  given  word.   Cuba 
and  tiie  United  States  agreed  tiiat.  under  certain  contingencies 
Uie  Umted  States  might  intervene  in  Cuba,  and  each  has  lived 
up  to  Uie  obligation,  witii  tt,e  result  Uiat  tiie  relations  of  Uie 
two  countiies  are  friendly,  confidential  and  wiUiout  a  trace 
of  suspicion  as  to  the  motives  of  eiUier. 

The  two  nations  met  upon  a  plane  of  equality,  arranged 
tiieir  future  relations  upon  just  terms,  and  each  has  observed 
the  spirit  as  well  as  Uie  letter  of  its  obtigation.    When  nations 
meet  upon  the  plane  of  equality  and  arrange  their  relations 
justly,  that  IS  to  say,  according  to  the  principles  of  justice 
and  when  Uiey  observe  Uie  spirit  as  well  as  the  letter  of  their 
obligations,  they  dwell  in  peace  and  harmony.    WTien.  how- 
ever, they  do  not  meet  upon  Uie  plane  of  equality,  and  the 
sword  of  Brennus  is  thrown  into  the  scale,  and  when  they  do 
not  arrange  their  relations  jusUy,  that  is  'o  sav.  in  accordance 
with  the  principles  of  justice,  but  in  accordance  with  the  de- 
sire of  Uie  strong  under  threat  of  force,  they  can  not  expect 
to  hve  in  peace  and  harmony,  and.  if  Uiey  did.  all  history 
would  give  them  the  lie. 


15 


Standing  here  as  I  do  before  you,  speaking  of  the  relations 
of  our  two  countries,  I  do  not  need  to  hang  my  head,  or  to  ut- 
ter words  of  apology.    I  regret  nothing  except  that  1  did  not 

arrive  in  your  beautiful  country  nineteen  years  ago. 

» 
•  • 
I  have  ventured  to  refer  to  the  relations  between  Cuba  and 
the  United  States  because  I  wish  to  take  a  concrete  example, 
to  show  that,  if  nations  meet  upon  terms  of  equality  and  base 
their  relations  upon  principles  of  justice,  and  if  in  good  faith 
they  keep  the  pledged  word,  we  may  expect  peace;  but  that  if 
they  do  not  do  so,  out  of  a  mistaken  regard  to  their  own  in- 
terests, anarchy  and  destruction  prevail.  As  Mr.  Root  said, 
on  May  11, 1908,  on  the  laying  of  the  cornerstone  of  the  Inter- 
national Bureau  of  American  Republics : 


I 

I' 


There  are  no  international  controversies  so  serious  that 
they  can  not  be  settled  peaceably  if  both  parties  really  de- 
sire peaceable  settlement,  while  there  are  few  causes  Oi 
dispute  so  trifling  that  they  can  not  be  made  the  occasion 
of  war  if  either  party  really  desires  war.  The  matters  in 
dispute  between  nations  are  nothing;  the  spirit  which 
deals  witlj  them  is  everj-thing.' 

Feeling  keenly  as  I  do  upon  these  matters,  1  desire  to  offer 
some  observations  upon  the  methods  whereby  justice  may 
enter  into  the  practice  of  nations;  for,  if  the  future  is  to  be  dif- 
ferent from  the  past  (and  who  does  not  hope  and  pray  that  it 
will  be?)  we  must  think  more  of  justice  and  the  ways  of  peace 
and  less  of  force  and  the  ways  of  war. 

I  consider  three  things  indispensable  in  any  consideration 
'f  this  subject,  and,  without  an  agreement  upon  them,  it  is  in 

'  American  Journal  of  International  Law,  toI.  i,  p.  dH. 


m 


if . 


% 


•i 


I  -!-  ■ 


16 


my  opinion  a  waste  of  time  to  discuss  internaUonal  questions 
and  to  plan  for  a  Jiappier  future.  The  first  is  that  we  regard 
all  nations  as  equal.  The  second  is  that  the  relations  of  na- 
tions be  based  upon  principles  of  justice;  and  ttie  third,  Oiat 
the  promises  of  nations,  whether  Uiey  be  embodied  in  formal 
documents,  such  as  treaties  and  conventions,  or  preserved  in 
informal  agreements,  be  scrupulously  kept. 

Let  me  touch  briefly  on  each  of  these  points  and  illustrate 
by  concrete  examples  the  sense  in  which  I  would  have  tiiem 
understood.    First,  as  to  equality.    We  can  not  say,  and  if  we 
do  we  can  not  expect  to  be  believed,  Uiat  nations  are  equal 
in  all  respects,  for  we  know  tfiat  tiiey  are  not.     Some  are 
larger  in  territorial  extent  and  are  thickly  peopled.    Some, 
again,   are   rich   in   ttieir   natural   and   material   resources; 
whereas  oUiers,  lacking  territorial  and  material  resources,  are 
rich  in  the  things  of  the  spirit.    To  confine  ourselves  to  the 
past,  lest  we  oflfend  the  present,  Rome  possessed  greater  ter- 
ritory, a  more  numerous  population  and  greater  material  re- 
sources and  enjoyed,  because  of  ttiese,  greater  political  influ- 
ence than  Athens;  the  Greek  conquered  tiie  Roman  intel- 
lectually, just  as  the  Roman  conquered  the  Greek  politically, 
and  Uie  Greek  spirit  which  conquered  Rome  today  dominates 
the  modem  worid.    The  influence  of  each  was  and  is  different 
—and  how  different! 

If,  therefore,  Uiinking  of  tiiese  things,  I  should  ask  you  to 
accept  equality  as  to  them,  you  would  justly  refuse  to  be  con- 
vinced. But  I  do  not  speak  of  physical,  mental  or  moral 
equality.  I  have  in  mind  equatity  before  tfie  law.  and,  in  this 
sense,  I  believe  and  therefore  I  state  that  nations  have  equal 
duties  and  equal  rights  in  and  under  tiie  law.  Indeed,  I  am 
unable  to  conceive  of  a  system  of  justice  which  does  not  recog- 
nize legal  equality,  and  I  can  not  understand  how  relations  not 
founded  upon  equality  before  and  under  and  in  the  law  can 
be  permanent,  and  it  is  the  permanent  things  we  wish  and 


17 


" 


must  have.  The  truth  that  inequality  finds  no  place  in  jus- 
tice was  never  better  stated  than  by  a  great  and  high-minded, 
generous  and  yet  just  French  statesman  at  the  First  Hague 
Conference.  In  speaking  of  the  supposed  inequality  of  the 
powers.  Lion  Bourgeois  said,  for  it  is  to  him  that  I  refer: 

Gentlemen,  what  is  now  the  rule  among  individual  men 
will  hereafter  obtain  among  nations.  Such  international 
institutions  as  these  will  be  the  protection  of  the  weak 
against  the  powerful.  In  the  conflicts  of  brute  force, 
where  fighters  of  flesh  and  with  steel  are  in  line,  we  may 
speak  of  great  Powers  and  small,  of  weak  and  of  mighty. 
When  swords  are  thrown  in  the  balance,  one  side  may 
easily  outweigh  the  other.  But  in  the  weighing  of  rights 
and  ideas  disparity  ceases,  and  the  rights  of  the  smallest 
and  the  weakest  Powers  count  as  much  in  the  scales  as 
those  of  the  mightiest. 

This  conviction  has  guided  our  work,  and  throughout 
its  pursuit  our  constant  thought  has  been  for  the  weak. 
May  they  at  least  understand  our  idea,  and  justify  our 
hope,  by  joining  in  the  effort  to  bring  the  future  of  Hu- 
manity under  the  majesty  of  the  Law.* 

In  the  presence  of  this  burst  of  eloquence,  one  might  well 
hesitate  to  continue  the  subject,  and  yet  I  may  not  dismiss  it, 
as  it  is  so  relevant  tn  my  argument.  I  would  like  to  say  that 
it  is  only  from  the  smaller  states  that  we  can  hope  justice  to 
enter  into  the  relations  of  nations,  to  permeate  the  nations 
and  to  prevail  in  their  practice,  because  the  larger  countries 
have  the  sword  with  which  to  enforce  their  views,  however  un- 
just they  may  be,  whereas  the  weaker  nations,  which  are  in- 
deed the  more  numerous,  have  only  justice  for  a  defense  and 
a  shield. 


*  Conference  intemaiionale  de  la  paix.  La  Haye,  18  mai-29  juillet 
1899.     Nouvelle  edition.     La  Haye,  1907,  pt.  i,  p.  97. 


18 


We  do  not  need  to  go  beyond  the  confines  of  the  United 
States  to  seek  an  illustration  of  the  arrogance  of  the  larger 
states  and  of  their  belief  that  they  are  entitled  to  greater  rights 
because  of  their  bigness.    On  July  4, 1776,  the  English-speak- 
ing colonies  of  North  America,  with  the  exception  of  Canada 
and  Newfoundland,  proclaimed  their  independence  of  Great 
Britain,  and,  in  order  to  obtain  it,  they  acted  in  unison.    The 
states  thus  proclaimed  created  a   confederacy  and  in   the 
Articles  of  Confederation,  as  the  instrument  of  government 
is  called,  they  declared  themselves  to  be  sovereign,  free  and 
independent,  and  at  the  same  time  they  reserved  to  them- 
selves every  right  not  specifically  delegated  by  the  Articles 
to  the  United  States  in  Congress  assembled.    The  union  under 
the  Articles  of  Confederation  proving  unsatisfactory,  twelve 
of  the  thirteen  States  met  in  conference  by  their  delegates 
in  the  Philadelphia  Convention  of  1787,  and.  as  the  result 
of  their  deliberations,  drafted  the  present  Constitution  of  the 
United  States,  making  of  the  Confederacy  "a  more  perfect 
union,"  safeguarding  the  equality  of  the  States  composing  it 
and  investing  the  United  States,  as  the  agency  of  the  States 
as  a  whole,  with  certain  powers  in  the  interest  and  for  the 
well-being  of  the  States  themselves,  creating  two  fields,  in 
one  of  which  the  United  States  are  sovereign  to  the  extent 
of  the  powers  enumerated  and  granted  directly  or  indirectly 
in  the  Constitution,  and  the  other  field,  in  which  the  States 
are  sovereign  in  the  powers  which  they  did  not  directly  or 
indirectly  grant  to  the  United  States,  or  of  which  they  did 
not  renounce  the  exercise.     There  was  the  contest  between 
the  great  and  the  small  States  which  always  takes  place  in 
incemational  conferences,  where  large  and  small  States  are 
represented,  for  it  is  apparently  in  the  nature  of  power  to 
wish  to  dominate.    The  larger  States  meeting  in  conference 
at  Philadelphia  were  no  exception,  and.  in  c  dcr  that  I  may. 


19 


without  giving  offense  to  foreign  nations,  illustrate  the  per- 
petual struggle  to  which  the  smaller  States  are  put  to  pre- 
serve themselves  from  the  aggression  of  the  larger  States, 
I  beg  to  quote  thrt  astances  from  the  debates  of  the  Phila- 
delphia Convention  as  reported  by  James  Madison,  affection- 
ately regarded  as  the  Father  of  the  Constitution  and  later  h 
President  of  the  United  States,  whose  more  perfect  union  he 
helped  to  found. 

The  first  instance  happened  before  the  opening  of  the  Con- 
vention, and  is  thus  described  by  Mr.  Madison  in  his  invalu- 
able notes  of  the  proceedings: 

Previous  to  the  arrival  of  a  majority  of  the  States,  the 
rule  by  which  they  ought  to  vote  in  the  Convention  had 
been  made  a  subject  of  conversation  among  the  members 
present  It  was  pressed  by  Govemeur  Morris  and  favored 
by  Robert  Morris  and  others  from  Pennsylvania,  that  the 
large  States  should  unite  in  firmly  refusing  to  the  small 
States  an  equal  vote,  as  unreasonable,  and  as  enabling  the 
small  States  to  negative  every  good  system  of  Govern- 
ment, which  must,  in  the  nature  of  things,  be  founded 
on  a  violation  of  that  equality.  The  members  from  Vir- 
ginia, conceiving  that  such  an  attempt  might  beget  fatal 
altercations  between  the  large  and  small  States,  and  that 
it  would  be  easier  to  prevail  on  the  latter,  in  the  course 
of  the  deliberations,  to  give  up  their  equality  for  the  sake 
of  an  effective  Government,  than  on  taking  the  field  of 
discussion  to  disarm  themselves  of  the  right  and  thereby 
throw  themselves  on  the  mercy  of  the  larger  States,  dis- 
countenanced and  stifled  the  project.* 


'  The  Journal  of  the  Debate*  in  the  Convention  which  framed  the  Con- 
ttitution  of  the  United  States,  May-September,  1787,  u  recorded  by 
Jamet  Maditon,  edited  by  Gaillard  Hunt  (New  York,  1908),  vol.  I,  p.  6; 
Thi  Record*  of  the  Federal  Convention  of  1787,  edited  by  Max  Farrand 
(New  Haven,  IPII).  vol.  I,  pp.  10-11. 


20 


Therefore,  the  States,  large  and  small,  were  given  an  etiual- 
ity  of  voice  in  the  rules  for  the  conduct  of  business.  The  dele- 
gates of  the  larger  States,  however,  acting  apparently  upon 
Madison's  advice,  endeavored  during  the  course  of  the  session 
to  persuade  or  to  force  the  small  States  to  yield  to  the  larger 
a  greater  influence  in  the  more  perfect  union  than  that  which 
was  to  be  possessed  by  the  smaller  States,  with  the  result  that 
the  Convention  well-nigh  broke  up  within  the  first  month  of 
its  meeting. 

For  this  second  instance,  1  quote  again  the  accurate 
Madison,  who  thus  recounts  a  passage  at  arms  in  which 
John  Dickinson,  representing  the  small  State  of  Delaware, 
criticized  and  rebuked  James  Madison,  representing  the  large 
State  of  Virginia: 


You  see  the  consequence  of  pushuig  things  too  far. 
Some  of  the  members  from  the  small  States  wish  for  two 
branches  in  the  General  Legislature,  and  are  friends  to  a 
good  National  Ciovernment;  but  we  would  sooner  submit 
to  foreign  power,  than  submit  to  be  deprived  of  an  equality 
of  suffrage  in  both  branches  of  the  legislature,  and  thereby 
be  thrown  under  the  domination  of  the  large  States.' 

The  result  was  a  compromise,  by  which  the  large  and  the 
small  States,  respectively,  renounced  some  of  their  preten- 
sions, without,  however,  affecting  the  question  of  equality. 

The  third  incident  happened  after  the  Constitution  had 
been  drafted  and  but  two  days  before  the  adjournment  of  the 
Convention.  The  chief  actors  were  Gouverneur  Morris,  who 
had  proposed  that  the  small  States  be  shown  their  place  at 
the  very  beginning,  and  James  Madison,  who  felt  that  they 


'  Hunt's  edition  of  Madison's  Journal  of  the  Debates  in  the  Conven- 
tion, vol.  I,  pp.  138-139;  Farrand's  Recordi  of  the  Federal  Convention, 
vol.  I,  p.  242. 


21 


could  be  forced  to  submit  to  their  betters  during  the  course  of 
the  Convention.  The  matter  under  consideration  was  the 
manner  of  amending  the  Constitution,  and  the  incident  shows 
why  it  is  that  the  Constitution  can  not  be  modified  in  such  n 
way  as  to  affect  the  equality  of  the  States  in  the  Senate,  in 
which  each  State  is  represented  as  such  and  in  which  each  has 
two  votes.  1  now  quote  the  third  incident,  without  further 
comment,  from  Madison's  notes: 

Mr.  Govr.  ! 'orris  moved  to  annex  a  further  proviso — 
"that  no  State,  without  its  consent  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate." 

This  motion  being  dictated  by  the  circulating  murmurs 
of  the  small  States  was  agreed  to  without  debate,  no  one 
opposing  it,  or  on  the  question,  saying  no.' 

«  • 
I  accept  and  I  beg  you  to  accept  the  magnificent  passage  of 
Rousseau,  which  I  have  ventured  to  place  upon  the  publica- 
tions of  the  Institute,  in  which  the  citizen  of  the  little  Re- 
public of  Geneva  thus  speaks  of  justice  and  the  equal  appeal 
which  it  makes  to  all  as  the  measure  of  their  rights  and  there- 
fore of  their  duties: 

The  first  and  greatest  interest  of  the  public  is  always 
justice.  All  want  equal  conditions  for  all  and  justice  is 
this  equality.  The  citizen  only  dtiires  law  and  the  ob- 
servance of  law.  Everybody  among  us  knows  that  if  there 
are  exceptions  they  will  not  be  in  his  favor.  Thus,  all 
fear  exceptions  and  he  who  fears  exceptions  loves  the 
law. 

It  is  not  necessary,  at  this  time  and  in  this  place,  to  dwell 
upon  the  need  of  a  rule  of  law  based  upon  justice  to  determine 


'  Hunt's  edition  of  Madison's  Journal  of  the  Debate*  in  the  Convention, 
vol.  e,  p.  38»J;  Farrand's  Record*  of  the  Federal  Convention,  vol.  i, 
p.  631. 


the  relations  of  nations  and  to  guide  their  conduct,  because 
the  great  war  of  1914  is  still  raging  and  convinces  the  most 
plebeian,  bourgeois  and  dull-witted  among  us  that,  as  Hamlet 
would  say,  something  is  rotten  in  the  state  of  Denmark;  and 
because  the  American  Institute  of  Intcmationul  Law  hus  con- 
fessed its  fuith  in  justice  as  the  basis  uf  law,  and  has  en- 
deavored to  state,  and  has  actually  stated,  within  the  com- 
pass of  six  articl<>s,  the  fundamental  principles  of  Justice  ob- 
taining in  civilixed  nations,  and  recognized  as  capable  of  ob- 
taining between  and  among  nations,  in  the  Declaration  of 
Rights  and  Duties  adopted  by  the  Institute  of  International 
I^w  at  its  first  session  at  Washington,  January  6,  1916.  Al- 
though you  are  familiar  with  the  Declaration  and  with  the 
articles  themselves,  and  the  sense  in  which  they  arc  to  be  un- 
derstood, as  it  is  the  sense  in  which  they  have  been  applied 
by  courts  of  justice  in  construing  and  deciding  international 
questions,  let  me  repeat  thern  for  purposf  ot  clearness,  as 
they  are  material  to  my  argument,  and  let  me  also  indulge  in 
a  word  of  comment.  Omitting  the  preamble,  which,  however, 
is  very  important,  as  it  Inys  the  foundation  upon  which  the 
rights  and  duties  of  nations  are  based,  the  articles  are : 


I.  Every  nation  has  the  right  to  exist,  and  to  protect 
and  to  conserve  its  existence;  but  this  right  neither  im- 
plies the  right  nor  justifies  the  act  of  the  State  to  protect 
itself  or  to  conserve  its  existence  by  the  commission  of 
unlawful  acts  against  innocent  and  unoffending  States. 

II.  Every  nation  has  the  right  to  independence  in  the 
sense  that  it  has  a  right  to  the  pursuit  of  happiness  and  is 
free  to  develop  itself  without  interference  or  control  from 
other  States,  provided  that  in  so  doing  it  does  not  inter- 
fere with  or  violate  the  rights  of  other  States. 

HI.  Every  nation  is  in  law  and  before  law  the  equal  of 
every  other  nation  belonging  to  the  society  of  nations,  and 
all  nations  have  the  right  to  claim  and,  according  to  the 


2S 


Declaration  of  Independence  of  the  United  States,  "to  at- 
■ume.  among  the  Powers  of  rhe  earth,  the  separate  and 
equal  station  to  which  the  laws  of  nature  and  of  nature's 
God  entitle  them." 

IV.  Every  nation  has  the  right  to  territory  within  de- 
fined boundaries  and  to  exercise  exclusive  Jurisdiction 
over  its  territory,  and  all  persons  whether  native  or  for- 
eign found  therein. 

V.  Every  nation  entitled  to  a  right  by  the  law  of  nations 
is  entitled  to  have  that  right  respected  and  protected  by 
all  other  nations,  for  right  and  duty  are  correlative,  and 
the  right  of  one  is  the  duty  of  all  to  observe. 

VI.  International  law  is  at  one  and  the  same  time  both 
national  and  international:  national  in  the  sense  that  it  is 
the  law  of  the  land  and  applicable  as  such  to  the  decision 
of  all  questions  involving  its  principles;  international  in 
the  sense  that  it  is  the  law  of  the  society  of  nations  and 
applicable  as  such  to  all  questions  bt-tween  and  among 
the  members  of  the  society  of  nations  involving  its  prin- 
ciples.' 

Now,  the  word  of  comment  for  which  I  must  ask  your  in- 
dulgence is  tliat,  if  the  first  five  of  these  articles  are  an  analysis 
and  suniniary,  as  I  believe  they  are,  of  the  principles  of  justice 
obtaining  in  every  civilized  country,  and  arc  liic  result  of  cen- 
turies of  development,  it  is  possible  to  reverse  the  process  and, 
from  tl.ese  five  principles  of  justice,  to  deduce  and  to  frame 
the  rules  of  conduct  based  upon  them  and  necessary  to  give 
them  effect.  It  niuy  be  easier  to  analyze,  but  wc  must  syn- 
thesize as  well.  We  need  only  follow  the  experience  of  na- 
tions with  their  internal  law,  and  accepting  the  principles 
of  justice  universally  recognized,  and  therefore  fundamental, 
we  can  derive  from  them  the  rules  of  law  which  should  con- 
trol the  conduct  of  nations.     They  may  differ,  perhaps,  in 


'  'I 

1  i 


'  .'^l■ott:     The  American  Imtitute  of  International  Law:  its  declaration 
of  the  rights  and  duties  of  nations  (Washin|^un,  l!ili:).  p.  88. 


iHii 


24 


form,  perhaps  in  content,  perhaps  in  sanction,  because  we  are 
dealing  in  one  case  with  natural  persons  and  in  the  other  case 
with  artificial  persons  which  we  call  States.  As  conditioni 
differ  we  will  expect  the  rules  of  law  concerning  them  to  dif- 
fer. But  however  that  may  be,  we  must  build  in  accordance 
with  a  definite  plan  and  upon  firm  foundations  if  we  expect 
our  structure  to  stand  and  to  prove  itself  adequate  to  the  needs 
of  nations. 

Let  me  indulge  in  a  further  comment.  If  the  conduct  of 
nations  is  to  be  controlled  by  rules  of  law,  based  upon  ex- 
perience had  with  justice,  we  must  agree  that  the  State,  how- 
ever large,  however  powerful,  however  numerous  may  be  its 
people,  is  nevertheless  subordinated  to  rules  of  law  based 
upon  fundamental  and  generally  recognized  principles  of  jus- 
tice, because,  if  the  State  be  not  subject  to  law  but  is  a  law 
unto  itself,  there  can  be  no  general  standard  of  conduct  based 
upon  law;  and  we  must  further  agree  that  the  State  shall  not 
determine  for  itself  the  rule  of  law  which  it  will  apply  in  a 
given  case,  because  if  the  State  decides  for  itself  we  may  have 
anarchy  instead  of  harmony,  as  we  may  find  ourselves  con- 
fronted with  as  many  different  interpretations  of  the  same 
rule  of  law,  based  upon  the  same  principles  of  justice  univer- 
sally recognized,  as  there  are  States. 

* 
*        « 

A  rule  of  law  must  be  observed,  whether  it  be  customary  or 
conventional — that  is  to  say,  whether  it  be  usage  hardened 
into  custom  and  evidenced  by  the  practice  of  nations,  or 
whether  it  be  in  the  form  of  treaty  or  convention  negotiated  by 
nations  and  by  ratification  given  the  form  of  an  international 
statute.  We  know  in  our  daily  life  that  it  is  useless  to  make 
contracts  unless  they  are  to  be  kept  and  unless  they  are  kept. 
If  we  believed  that  they  would  not  be  observed  wo  would  not 
have  made  them,  and  we  would  hesitate  to  make  contracts  at 


25 


all,  or  to  make  contracts  with  those  who  did  not  observe  them. 
The  world  of  affairs  needs  contracts;  the  world  of  affairs  in- 
sists that  they  be  kept;  thf  ^^  r^rld  of  affairs  has  provided  agen- 
cies to  secure  their  o'  ssrvautc. 

Now,  it  is  equally  lecessary  that  .-jntracts  be  made  by  na- 
tions—and treaties  a  v  ontracts—  nat  they  should  be  kept, 
and  that  there  should  oe  ageuties  to  secure  their  observance. 
Otherwise,  it  is  foolish  to  make  them;  indeed,  it  is  worse  than 
foolish,  because  each  contract  broken  discredits  the  system 
and  renders  international  law  a  source  of  merriment  to  the 
unbelieving. 

We  do  not  need  authority  for  the  statement  that  contracts 
between  natural  persons  must  be  kept,  and  we  do  not  need 
authority  for  the  contention — 1  use  the  word  advisedly— that 
contracts  between  artiflcial  (1  had  almost  said  unnatural)  per- 
sons must  be  kept.  The  system  of  jurisprudence  of  every  civil- 
ized country  accepts  the  axiom  of  the  Roman  law  that  pacta 
servanda  sunt,  which  may  be  freely  translated  that  agree- 
ments are  to  be  observed.  And  without  arguing  or  elaborating 
the  point,  I  content  myself  with  this  brief  quotation. 

The  case  appears  to  be  diiierent  with  nations,  if  we  test 
profession  by  practice;  and  yet,  if  the  reason  in  each  instance 
is  the  same,  1  should  not  need  to  reenforce  the  statement, 
which  1  have  called  a  contention,  that  treaties  be  kept,  and  I 
should  not  need  to  elaborate  the  further  statement,  which  I 
must  likewise  call  contentious,  that  conventions  can  only  be 
modified  or  varied  by  the  parties  to  them,  just  as  contracts  be- 
tween individuals  can  only  be  modified  or  varied  by  the  par- 
tics.  Yet  if  authority  be  needed  we  have  it,  and  it  is  the 
solemn  declaration  of  the  nations  of  light  and  leading  and 
which  we  have  been  accustomed  to  consider  as  holding  aloft 
the  torch  of  civilization.  Let  me  briefly  state  the  circum- 
stances of  the  important  document  to  which  I  refer  and  which 


26 

I  shall  presently  quote,  and  let  me  premise  that  it  is  but  a  hun- 
dred words,  inasmuch  as  simple  and  fundamental  truths  are 
felt  and  often  need  not  be  expressed,  or,  if  expressed,  are 
indicated,  as  it  were,  rather  than  stated  at  length. 

By  the  11th  article  of  the  Treaty  of  Paris  of  March  30,  1856, 
putting  an  end  to  the  Crimean  war,  and  to  which  Austria, 
France,  Prussia,  Russia,  Sardinia,  and  Turkey  were  parties, 
Russia  and  Turkey  were  forbidden  to  keep  vessels  of  war  in 
the  Black  Sea.  Let  me  quote  the  exact  text  of  the  article,  as 
it  is  very  material  to  the  present  purpose: 

The  Black  Sea  is  neutralized:  its  waters  and  its  ports, 
thrown  open  to  the  mercantile  marine  of  every  nation,  are 
formally  and  in  perpetuity  interdicted  to  the  flag  of  war, 
either  of  the  Powers  possessing  its  coasts,  or  of  any  other 
Power,    .    .    .* 

Taking  advantage  of  the  Franco-Prussian  War  of  1870, 
and  of  circumstances  which  need  not  be  related  here,  Rus- 
sia, by  its  own  action,  declared  this  provision  of  the  treaty 
to  which  it  was  a  party  to  be  abrogated.  It  was,  in  one 
sense,  a  small  matter,  and  it  was  no  doubt  as  unwise  in  the 
Powers  as  it  was  humiliating  to  Russia  to  have  inserted  such 
a  provision  in  the  treaty;  but,  whether  wise  or  foolish,  or 
humiliating,  the  clause  in  question  formed  an  integral  part  of 
the  treaty  and  the  claim  of  Russia  to  abrogate  it  was  a  claim 
to  modify  or  vary  a  solemn  treaty  at  its  whim  or  pleasure. 
Nay  more,  it  was  a  claim  which,  if  allowed,  would  permit  if 
not  actually  authorize  any,  and  therefore  every,  nation  to 
modify  or  vary  a  treaty  to  which  it  was  a  party,  without  the 
consent  of  the  signatories,  whenever,  in  its  opinion,  a  clause 


^British  and  Foreign  State  Papers,  vol.  4fi,  p.  12;  Thomas  Erskine 
Holland:  The  European  Concert  in  the  Eastern  Question  (1885),  p. 
247. 


27 


agi-eed  to  and  accepted  had  become  burdensome  and  contrary 
to  what  it  professed  to  consider  its  best  interests. 

This  was  the  attitude  of  the  Powers  at  that  time,  and  in  con- 
sidering "the  question  in  whose  hand  lay  the  power  of  releas- 
ing one  or  more  of  the  parties  to  the  treaty  from  all  or  any  of 
its  stipulations,"  Lord  Granville,  then  Her  Majesty's  principal 
Secretary  of  State  for  Great  Britain,  said: 

It  has  always  been  held  that  the  right  belongs  only  to 
the  governments  who  have  been  parties  to  the  riginal 
instrument.  The  despatches  of  the  Russian  Government 
appear  to  assume  that  any  one  of  the  Powers  who  have 
signed  the  engagement  may  allege  that  occurrences  have 
taken  place  which  in  its  opinion  are  at  variance  with  the 
provisions  of  the  treaty,  and  though  their  view  is  not 
shared  nor  admitted  by  the  co-signatory  Powers,  may 
found  upon  that  allegation,  not  a  request  to  those  govern- 
ments for  a  consideration  of  the  case,  but  an  announce- 
ment to  them  that  it  has  emancipated  itself,  or  holds  itself 
emancipated,  from  any  stipulations  of  the  treaty  which 
it  thinks  fit  to  disapprove.  Yet  it  is  quite  evident  that  the 
effect  of  such  doctrine  and  of  any  proceeding  which,  with 
or  without  avowal,  is  founded  upon  it,  is  to  bring  the  en- 
tire authority  and  efficacy  of  treaties  under  the  discr^-- 
tionary  control  of  each  of  the  Powers  who  may  have 
signed  them;  the  result  of  which  would  be  the  entire  de- 
struction of  treaties  in  their  essence.* 

The  signatories  of  the  Treaty  of  Paris  therefore  met  in  con- 
ference to  consider  the  matter,  and  they  adopted  a  declara- 
tion on  January  17,  1871,  to  which  France  adhered  on  March 
13,  1871,  which,  with  the  signatures  appended,  reads  as  fol- 
lows: 


'William   Edward   Hall:     A    treatxte  on   international  law    (Oxford, 
1895),  pp.  ,'<71-372. 


The  plenipotentiaries  of  the  North  German  Confedera- 
tion, Austria-Hungary,  Great  Britain,  Italy,  Russia,  and 
Turkey,  assembled  today  in  conference,  recognize  that  it 
is  an  essential  principle  of  the  law  of  nations  that  no 
Power  can  liberate  itself  from  the  engagements  of  a 
treaty,  nor  modify  the  stipulations  thereof,  except  as  the 
result  of  the  consent  of  the  contracting  parties,  by  means 
of  an  amicable  understanding. 

In  faith  of  which  the  said  plenipotentiaries  have  signed 
the  present  protocol. 
Done  at  London,  this  17th  day  of  January,  1871. 

Bernstorff. 

Apponyi. 

Granville. 

Cadorna. 

Bhunnow. 

MUSURUS. 

13th  March.  1871.        Brogue.* 


There  is  no  virtue  in  keeping  an  agreement  when  it  is  to  our 
advantage  to  do  so.  The  virtue,  if  virtue  it  be,  only  appears 
when  the  treaty  hurts.  Experience  shows  that  treaties  which 
are  advantageous  are  kept,  as  are  treaties  which  do  not  lay 
too  great  a  burden  or  involve  too  great  a  sacrifice;  and  it  may 
be  said  in  this  connection  that  the  less  the  sacrifice  the  greater 
the  observance  of  the  treaty.  Therefore,  the  part  of  wisdom 
appears  to  be  not  to  ask  too  much  of  the  nations  at  any  one 
time,  but  that,  instead  of  taking  a  leap,  which  may  be  a  lea,i 
in  the  dark,  we  should  take  an  infinite  series  of  little  steps, 
each  in  advance  of  the  other,  each  springing  naturally  out  of 
its  predecessor,  and  each  confirmed  by  experience,  before  the 
next  step  is  taken.  Tliis  is  indeed  festina  lente,  but  it  is  prog- 
ress, although  slow;  it  is  sure,  for  what  is  gained  in  this  way 
is  liable  to  be  observed  and  not  lost  in  times  of  storm  and 


'  Brituk  and  Foreign  State  Papert.  1870-71,  vol.  61,  pp.  1198-90. 


29 


stress.  The  fable  of  the  Tortoise  and  the  Hare  is  not  wholly 
confined  to  individuals;  it  applies  as  well  to  nations.  The  in- 
cident of  the  dog  grasping  for  its  shadow  and  losing  the  bone, 
applies  as  well  to  nations.  Let  me  recount  the  fables  to  you, 
for  I  fear  that  in  these  latter  days  we  lose  sight  of  the  general 
principles  in  our  eagerness  for  the  details;  so  that,  as  our  Ger- 
man friends  put  it,  we  can  not  see  the  forest  for  the  trees.  Let 
me  preface  the  fables  with  a  proverb  from  Solomon:  "Wis- 
dom is  the  principal  thing;  therefore  get  wisdom;  and  with  all 
thy  getting,  get  understanding." 

Although  Aesop  has  not  hitherto  been  quoted  as  an  author- 
ity on  international  law  and  on  international  relations,  I 
nevertheless  venture  to  vouch  him  as  the  safe  and  sure  model 
to  follow.  "A  Hare,"  he  tells  us,  "was  one  day  making  fun 
of  a  Tortoise  for  being  so  slow  upon  his  feet.  'Wait  a  bit,'  said 
the  Tortoise;  'I'll  run  a  race  with  you,  and  I'll  wager  that  I 
win.'  *0h,  well,'  replied  the  Hare,  who  was  much  amused  at 
the  idea,  iet's  try  and  see';  and  it  was  soon  agreed  that  the  fox 
should  set  a  court  for  them,  and  be  the  judge.  When  the  time 
came  both  started  off  together,  but  the  Hare  was  soon  so  far 
ahead  that  he  thought  he  might  as  well  have  a  rest;  so  down 
he  lay  and  fell  fast  asleep.  Meanwhile  the  Tortoise  kept  plod- 
ding on,  and  in  time  reached  the  goal.  At  last  the  Hare  woke 
up  with  a  start,  and  dashed  on  at  his  fastest,  but  only  to  find 
that  the  Tortoise  had  already  won  the  race."  From  this 
Aesop  draws  the  conclusion,  which  I  would  ppply  to  nations, 
"Slow  and  steady  wins  the  race." 

Again  to  quote  Aesop,  "A  Dog,"  he  informs  us,  "was  crossing 
a  plank  bridge  over  a  stream  with  a  piece  of  meat  in  his 
mouth  [other  versions  supply  the  dog  with  a  bone]  when  he 
happened  to  see  his  own  reflection  in  the  water.  He  thought 
it  was  another  dog  with  a  piece  of  meat  twice  as  big;  so  he  let 
go  his  own,  and  flew  at  the  other  dog  to  get  the  larger  piece. 


:'-Sf 


;••;•«.! 


so 


But,  of  course,  all  that  happened  was  that  he  got  neither;  for 
one  was  only  a  shadow,  and  the  other  was  carried  away  by 
the  cuzTent" 

Aesop  does  not  draw  the  moral  from  this  litUe  tale,  because, 
perhaps,  it  was  obvious,  in  his  opinion;  and  indeed,  obvious  it 
has  been  from  his  day  to  this.  Haste,  the  English  proverb 
says,  "makes  waste"— a  fact  which  advocates  of  peaceable  set- 
tlement may  one  day  learn. 

If,  then,  there  is  a  difference  between  the  willingness  of  na- 
tions to  conclude  those  treaties  which  are  advantageous  and 
which  concern  a  subject-matter  with  which  they  are  familiar 
because  the  world  has  had  experience  with  it.  and  treaties 
which  impose  burdens  or  deal  with  a  subject-matter  in  which 
the  world  has  not  had  experience,  or  but  limited  experience,  is 
it  not  the  part  of  wisdom  to  recognize  this  distinction  and,  by 
recognizing  it,  only  lay  upon  nations  burdens  which  experi- 
ence shows  that  they  can  and.  what  is  not  less  important,  that 
they  are  willing  to  bear;  and  is  it  not  the  part  of  wisdom,  if 
there  be  no  experience,  to  go  part  of  the  way  at  one  time  and 
to  limit  the  application  of  the  treaty  to  a  short  period,  so 
that,  if  the  experience  is  unfavorable,  the  treaty  does  not  need 
to  be  renewed,  but  if  the  experience  is  favorable,  the  conven- 
tion may  be  continued  for  a  longer  period,  perhaps  indefi- 
nitely, and  then  a  further  step  be  taken  in  advance. 

Without  pausing  to  reenforce  a  general  principle  by  un- 
necessary illustrations,  let  me  suggest  that  treaties  of  a 
problematical  character  be  limited  to  a  very,  very  short  time. 
We  can  not  be  wiser  than  the  rest  of  mankind,  and  inasmuch 
as  every-day  experience  shows  us  that  individuals  are  will- 
ing to  pledge  themselves  to  a  line  of  conduct  as  to  which 
they  have  doubt  or  scruples,  if  thty  know  >that  they  are 
not  bound  for  a  long  period,  so  nations,  which  after  all  are 
but  individuals  grouped  more  or  less  artificially,  may  like- 


31 

wise  be  willing  to  stretcli  a  point  if  they  are  assured  by  the 
very  instrument  to  which  they  set  their  hands  and  seals  that 
they  are  to  be  bound  but  for  a  short  time,  and  that  the  renewal 
of  the  treaty,  or  rather  its  continuation,  depends  upon  actual 
experience,  because  if  not  denounced  or  abrogated  at  the  ex- 
piration of  the  ti^e  for  ^vhich  it  is  concluded  it  should  con- 
tinue for  a  further  period.  And  in  this  matter  negative  is  as 
good  as  positive  experience;  for  if  none  of  the  consequences 
which  were  feared  or  anticipated  have  happened  we  may 
count  upon  a  continuance  of  the  treaty,  just  us  if  favorable 
experience  had  been  had,  because  nations,  like  individuals, 
prefer  the  old  rut  to  the  new  road,  and  they  are  willing  to 
keep  on  where  they  might  have  been  unwilling  to  begin.  In 
this  way  we  may  stimulate  the  good  faith  of  nations,  we  en- 
courage them  to  act  upon  their  good  faith,  and  we  do  not 
make  it  difficult  for  them  to  do  so. 


•        * 

Now,  it  must  be  understood  that  these  three  matters  which 
I  have  ventured  to  call  essential  to  international  relations  must 
be  regarded  by  all  nations  as  rights  of  all  and  placed  under 
the  guaranty  of  all,  that  all  have  a  like  interest  in  equality, 
that  all  have  an  equal  interest  in  justice  and  that  the  happi- 
ness of  all  must  depend  upon  the  observance  of  law,  cus- 
tomary or  international,  and  that  in  case  o*"  the  violation  of 
any  one  of  these  it  is  the  right,  nay,  the  duty  of  each  to  pro- 
test, not  merely  in  its  own  right  and  in  its  own  name,  but  in 
the  right  and  name  of  every  member  of  the  society  of  nations. 

It  is  admitted  to  be  the  right  and  the  duty  of  a  neutral 
nation  to  protest  if  the  action  of  a  belligerent  affects  injuriously 
the  persons  or  the  property  of  that  neutral.  The  books  are 
full  of  protests  in  such  cases,  and  a  large  part  of  the  cor- 
respondence of  neutral  nations  since  the  outbreak  of  the  great 
war  in  August.  1914,  consists  of  the  protests  of  neutrals  to 


^'W, 


32 


!'      f 


i  » 


belligerents.  It  is  not  so  generally  recognized  that  a  neutral 
nation  has  a  right  to  protest,  although  its  citizens,  or  their 
property,  may  not  have  been  directly  injured  by  belligerent 
action,  or  that  it  be  the  right  and  duty  for  a  neutral  nation  to 
protest  against  a  violation  of  neutral  right,  even  although 
neither  the  lives  of  its  citizens  nor  their  property  are  directly 
affected.  The  reason  is  that  the  violation  of  the  right  of  one 
neutral  is  a  violation  of  the  right  of  all  neutrals;  for  if  a  bel- 
ligerent can  violate  at  its  pleasure  a  rule  of  law  which  today 
affects  nations  A,  B,  or  C,  it  may  tomorrow  violate  the  same 
rule  of  law  affecting  the  interests  of  nations  X,  Y,  and  Z. 
Indeed  it  is  not  the  injury  to  the  person  or  the  injury  to  the 
property  which  matters.  It  is  the  withdrawal  of  the  protec- 
tion of  the  rule  of  law,  upon  which  both  life  and  property  de- 
pend. Withdraw  the  law,  and  the  person  and  property  of  the 
neutral  are  at  the  mercy  of  the  belligerent. 

It  is  correct  to  say  that  a  foreign  nation  would  not  be  justi- 
fied in  protesting  a  rule  of  municipal  law  until  either  its  citi- 
zens or  subjects  or  their  property  be  injured.  It  is  not  to 
be  presumed  that  a  municipal  law  has  been  passed  which  will 
be  interpreted  as  contrary  to  international  law,  and  it  is  a 
canon  of  construction  that  a  municipal  law  will  be  presumed 
to  be  consistent  with  international  law  unless  such  a  construc- 
tion is  impossible.  Thus,  in  the  case  of  the  Charming  Betsy, 
decided  by  the  Supreme  Court  of  the  United  States  in  1804, 
Chief  Justice  Marshall  said: 

It  has  also  been  observed,  that  an  act  of  Congress  ought 
never  be  construed  to  violate  the  Jaw  of  nations,  if  any 
other  possible  construction  remains,  and  consequently, 
can  never  be  construed  to  violate  neutral  eights,  or  to 
affect  neutral  commerce,  further  than  is  warranted  by  the 
law  of  nations  as  understood  in  this  countrj'.* 


*2  Cranch,  «4,  118. 


I\ 


S3 

The  presumpUon  is  either  that  the  law  is  not  inconsistent 
^ilh  the  rule  of  international  law,  or  that  it  will  not  be  applied 
to  foreign  persons  or  interests  in  such  a  way  as  to  violate  the 
rule  of  international  law.  Even  in  these  cases  it  would  be 
proper  to  call  attention  to  the  probable  consequences  of  the 
statute. 

But  the  naUon  passing  the  statute  is  sovereign  within  its 
territory,  and  it  has  the  right  to  exercise  its  sovereignty  in 
such  a  way  as  to  affect  all  persons,  alien  or  naUve.  and  all 
property  within  its  jurisdiction.  The  case  is  enUrely  different 
in  international  law.  No  nation  has  a  right  to  make  interna- 
tional law;  no  nation  has  a  right  to  give  to  its  municipal  stat- 
ute international  effect;  no  nation  has  a  right  to  extend  its 
statutes  in  such  manner  as  to  interfere  with  the  rights  of  other 
nations.  This  arises  from  the  independence  and  equality  of 
naUons.  As  Sir  William  Scott,  later  Lord  Stowell,  put  it  in 
1817,  in  deciding  the  case  of  Le  Louis: 

two  principles  of  public  law  are  generally  recognized 
as  fundamental.  One  is  the  perfect  equality  andSre 
independence  of  all  disUnct  States.  RelaUve  magnUude 
creates  no  distinction  of  right;  relative  imbecility,  whether 
permanent  or  casual,  gives  no  additional  right  to  the  more 
powerful  neighbor;  and  any  advantage  se^ed  uponX 
SThl.".""^  u  urpation.    This  is  the  great  foundation 

kfnH  H  J^""'  Z^'''^  **  ™"°'y  ^°°*=«™'  t^«  P««««  of  man- 
kind, both  in  their  poliUc  and  private  capacities,  to  pre- 

^r".  T^'"*'-  ^^  ''*=**°**  "'  ">«*  «»  °««ons  being 
equal,  all  have  an  equal  right  to  the  uninterrupted  use  of 
Uie  unappropriated  parts  of  the  ocean  for  their  naviga- 
tion In  places  where  no  local  authority  exists,  where  the 
subjects  of  all  States  meet  upon  a  footing  of  entire  equaN 

haVr  riLh*^?"  ""'  °°  °"'  ^*^*^'  "'■  «"y  °f  "»  »»bjects. 
wu    r  u  "''"""^  "'■  ^^"""^  authority  over  the  sub- 

jects of  another.* 


*  2  Dodson,  8)0.  243. 


34 


The  language  of  'Chief  Justice  Marshall,  in  the  case  of  the 
Antelope,  decided  in  1825,  is  no  less  positive,  and  can  not  be 
too  often  quoted : 


No  principle  of  general  law  js  more  universally  ac- 
knowledged, than  the  perfect  equality  of  nations.  Russia 
'iand  Geneva  have  equal  rights.  It  results  from  this  equal- 
ity, that  no  one  can  rightfully  impose  a  rule  on  another. 
Each  legislates  for  itself,  but  its  legislation  can  operate 
on  itself  alone.  A  right,  then,  which  is  vested  in  all,  by 
the  consent  of  all,  can  be  divested  only  by  consent;  and 
this  [slave]  trade,  in  which  all  have  participated,  must  re- 
main lawful  to  those  who  can  not  be  induced  to  relinquish 
it  As  no  nation  can  prescribe  a  rule  for  others,  none  can 
make  a  law  of  nations;  and  this  traflBc  remains  lawful  to 
those  whose  governments  have  not  forbidden  it.' 

Now,  if  international  .law  U  largely  a  thing  of  usage  and  of 
usage  hardened  into  custom,  niitions  can  not  afford  to  allow 
one  of  their  number  to  embark  upon  a  course  which,  if  con- 
tinued, and  if  submitted  to  by  them,  will  result  in  a  precedent 
binding  their  conduct,  if  not  their  conscience.  Lest  usage  shall 
harden  into  custom  and  silence  seem  to  give  consent,  it  is  the 
right  and  it  lis  the  duty  of  neutral  nations  to  state  firmly  and 
positively  that  they  will  not  allow  a  violation  of  international 
right  to  become  an  exception  to  the  rule,  which  it  will  be  if, 
without  protest,  they  permit  the  belligerent  to  violate  the  rule 
of  law. 

Again,  if  no  one  nation  can  make  a  law  of  nations,  and  if  a 
nation  is  only  bound  by  what  it  agrees  to,  it  follows  that  a  rule 
to  be  regarded  as  forming  part  of  the  law  of  nations  must  be 
made  by  all  or  consented  to  by  all.  Differing  from  municipal 
law,  which  is  made  by  one  nation,  international  law  is  made 


'  10  Wheaton,  06,  122. 


by  the  many,  or  by  all  in  common.  The  very  moment,  there- 
fore, that  any  nation,  however  powerful,  arrogates  to  itaelf 
the  right  to  abrogate  a  rule  of  international  law— for  violation 
of  a  right  of  neutrals  without  the  consent  of  neutrals  is  in  ef- 
fect a  claim  to  abrogate  the  rule— it  is  the  right  of  neutrals  to 
interpose  an  objection;  and  if  the  view  stated  above  be  correct, 
it  is  the  duty  of  neutrals  to  do  so.  whether  or  not  they  seem 
to  be  directly  affected  in  the  persons  of  their  subjects  or  citi- 
lens,  or  of  (their  property.  If  international  law  were  as  mu- 
nicipal law.  the  rule  of  one  country,  this  could  not  be  so.  But 
as  it  is  the  rule  of  all  countries,  the  violation  of  that  rule  is  in 
effect  the  violation  of  it  for  all  neutrals,  because  it  is  the  law  of 
all  neutrals. '.and  not  merely  the  right  of  the  particular  country. 
A  case  in  point  will  make  this  clear;  and  in  order  that  no 
criticism  may  seem  to  be  made  of  foreign  countries,  an  Ameri- 
can illustration  will  be  \chosen.  On  November  8.  1861,  the 
United  States  man-of-war  San  Jacinto,  under  the  command  of 
Captain  Charles  Wilkes,  stopped  the  steamer  Trent,  took  off 
two  civil  passengers.  Messrs.  Mason  and  Slidell,  commissioners 
from  I  the  Confederate  States  of  America  to  Europe,  and  there- 
after allowed  the  vessel  to  continue  its  passage.  The  Trent 
was  a  British  mail  packet,  therefore  a  neutral  vessel,  on  its 
way  from  Havana  to  St.  Thomas.  Under  international  law 
then  existing  and  as  it  now  stands,  the  United  States  did  not 
have  the  right  to  remove  Mason  and  Slidell,  although  Secre- 
tary of  State  Seward  claimed  that  it  would  have  been  proper 
for  Captain  V/ilkes  to  capture  the  vessel  and  to  take  it  into 
an  American  port,  in  order  to  have  it  condemned  for  car- 
rying the  Confederate  commissioners,  who  were  apparently 
regarded  by  the  American  authorities  as  in  the  nature  of  con- 
traband. Great  Britain  protested  against  the  removal  of  civil 
passengers  from  a  British  and  therefore  neutral  vessel,  and 
it  was  clearly  both  the  right  and  the  duty  of  Great  Britain  to 


■1 


■I. 


protest.    The  United  States  yielded,  and  returned  Mnson  and 
Slidell  to  BriUsli  custody. 

But  there  was  more  to  the  incident  than  this,  otherwise  it 
would  not  be  cited  in  this  connection.  France.  Prussia,  and 
Austria  also  formally  protested  against  the  action  of  the  United 
States  in  removing  Mason  and  Slidell  from  the  Trent,  and 
Hussia  called  the  matter  informally  to  the  attention  of  the 
United  States.  On  December  3.  1861.  the  French  Imperial 
Minister  of  Foreign  AflTairs,  M.  Thouvenel.  instructed  the 
French  Minister  at  Washington  to  wait  upon  Secretary 
Seward,  to  read  to  him  the  instruction  and  to  leavp  a  copy 
with  him  should  he  desire  it.  The  Minister  of  Foreign  Af- 
fairs  laid  the  foundation  for  his  protest  in  the  following  pas- 
sage: 


The  desire  to  contribute  to  prevent  u  conflict,  imminent 
perhaps  between  two  Powers  towards  which  it  is  ani- 
mated by  sentimcnto  equally  friendly,  and  the  duty  to 
mnintain  certain  principles  essential  to  the  security  of 
neutrals  with  the  effect  of  protecting  the  rights  of  its  own 
flag  from  injury,  have  convinced  it  [the  Government  of 
the  Emperor],  after  mature  reflection,  that  it  can  not  under 
these  circumstances  remain  altogether  silent.' 


!(  ' 


After  this  expression  of  friendly  regard,  M.  Thouvenel  dis- 
cussed the  merits  of  the  incident,  and  after  expressing  the 
views  of  his  government,  thus  continued: 


Not  wishing  to  enter  into  u  more  thorough  discussion 
of  the  questions  raised  by  the  capture  of  Messrs.  Mason 
and  Slidell,  I  have  said  enough  about  it,  I  believe,  to  estab- 
lish that  the  Cabinet  at  Washington  would  not  be  able. 


'Bernard:     .1   hittorical  account  of  the  neutrnlitti  of  Great  Britain 
during  the  .'Imerican  Civil  War  (London,  1870).  p.   10«. 


wlthoii*  infringing  upon  the  principles  for  which  all  neu- 
tral Powers  are  equally  interested  in  assuring  respect  or 
without  contradicting  its  own  conduct  up  to  this  time,  to 
give  its  approval  to  the  proceedings  of  the  commander  of 
the  San  Jacinto} 

One  more  protest  may  be  quoted  as  of  more  than  passing 
interest.  On  December  25.  1881.  the  Prussian  Minister  of  For- 
eign AflTairs,  Count  von  Bernstorff,  a  name  familiar  to  the 
American  people  at  the  present  time  because  of  the  fact  that 
the  present  German  Ambassador  to  the  United  States  bears  the 
honored  name  of  this  minister,  and  is  his  son,  instructed  the 
Prussian  Minister  to  the  United  States.  Baron  von  Gcrholt,  to 
call  upon  Secretary  Seward  to  read  him  the  contents  of  an  in- 
struction, and  to  leave  a  copy  of  it  with  him  should  the  Ameri- 
can Secretary  of  State  desire  it.  This  particular  instruction  of 
the  Prussian  Minister  of  Foreign  Affairs  dealt  with  the  Trent 
affair,  courteously  but  flnnly  stating  the  rights  of  neutrals,  and 
protesting  against  their  violation  in  this  instance.    He  said : 

The  maritime  operations  undertaken  by  President  Lin- 
coln against  the  Southern  seceding  States  could  not.  from 
their  v  y  commencement,  but  fill  the  King's  Government 
with  apprehensions  lest  they  should  result  in  possible 
prejudice  to  the  legitimate  interests  of  neutral  Powers. 

These  apprehensions  have  unfortunately  proved  fully 
justified  by  the  forcible  seizure  on  be  u  J  the  neutral  mail- 
packet  the  Trent,  and  the  abduction  therefrom,  of  Messrs. 
Slidell  and  Mason  by  the  commander  of  the  United  S»ates 
man-of-war  the  San  Jacinto. 

This  occurrence,  as  you  can  well  imagine,  has  produced 
in  England  and  throughout  Europe  the  most  profound 
sensation,  and  thrown  not  cabinets  only,  but  also  public 
opinion,  into  a  state  of  the  most  excited  expectation.  For. 

•  Ibid.,  p.  198. 


ifil 


38 


although  at  present  it  is  England  only  which  is  immedi- 
ately concerned  in  the  matter,  yet,  on  the  other  hand,  it  is 
one  of  the  most  important  and  universally  recognized 
rights  of  the  neutral  flag  which  has  been  called  into  ques- 
tion.^ 


■it 


If  i 


It  will  be  observed  that  Count  von  Bemstorff  does  not  speak 
in  this  passage  of  Prussian  rights  as  such.  He  takes  the 
broader  ground  that  a  violation  of  the  neutral  rights  of  any 
country  is  a  violation  of  the  neutral  rights  of  all  countries, 
and  therefore  the  rights  of  Prussia.  He  recognizes  that  the 
claim  to  violate  neutral  rights  in  the  case  of  Great  Britain  was 
in  effect  the  claim  to  violate  the  neutral  rights  of  every  other 
State  belonging  to  the  society  of  nations,  and  because  of  that 
fact,  the  incident  had,  to  quote  Count  von  Bemstorff's  explana- 
tion, "produced  in  England  and  throughout  Europe  the  most 
profound  sensation,  and  thrown  not  cabinets  only,  but  also 
public  opinion,  into  a  state  of  the  most  excited  expectation." 

But  strong  as  is  this  note,  just  as  are  its  views,  and  admirable 
as  is  its  temper,  the  Prussian  Government,  as  will  be  seen  in  a 
further  quotation  from  the  instruction,  did  not  wait  for  an  in- 
quiry or  investigation  to  show  whether  Captain  Wilkes'  action 
was  by  the  direction  of  his  government  or  whether  it  met 
with  the  government's  approval.  In  Count  von  Bemstorff's 
opinion,  it  made  no  difference  in  effect  whether  Wilkes  was 
acting  under  instructions,  or  whether  he  acted  upon  his  own 
initiative.  In  either  case  the  world  was  confronted  with  the 
violation  of  neutral  rights,  and  therefore  a  protest  was  justi- 
fied and  requisite.    Thus: 


In  the  absence  of  any  reliable  information  we  were  in 
doubt  as  to  whether  the  captain  of  the  San  Jacinto,  in  the 

^  Ibid.,  p.  199. 


SB 

course  taken  by  him,  had  been  acting  under  orders  from 
his  government  or  not.  Even  now  we  prefer  to  assume 
that  the  latter  was  the  case.  Should  the  former  supposi- 
tion, however,  turn  out  to  be  the  correct  one,  we  should 
consider  ourselves  under  the  necessity  of  attributing 
greater  importance  to  the  occurrence,  and  to  our  great 
regret  we  should  find  ourselves  constrained  to  see  in  it 
not  an  isolated  fact  but  a  public  menace  offered  to  the 
existing  rights  of  all  neutrals.^ 

As  Chief  Justice  Waite  has  said  in  the  Arjona  case,  decided 
by  the  Supreme  Court  of  the  United  States  in  1887: 

International  obligations  are  of  necessity  reciprocal  in 
their  nature.  The  right,  if  it  exists  at  all,  is  given  by  the 
law  of  nations,  and  what  is  law  for  one  is,  under  the  same 
circumstances,  law  for  the  other.' 

In  the  society  of  nations  as  at  present  organized,  there  is  no 
central  authority  and  there  is  nobody  authorized  to  speak  and 
to  act  for  the  society  as  a  whole.  The  maintenance  of  inter- 
national law  depends  upon  the  enlightened  judgment  and 
good  faith  of  the  different  nations.  Each  acts  for  itself,  but 
in  so  doing  it  acts  for  all,  because  the  right  of  one  is  the  right 
of  all,  and  tlie  duty  of  one,  unless  it  be  based  upon  a  special 
treaty,  is  the  duty  of  alL 

If  we  are  not  our  brother's  keeper,  we  are,  or  at  least  we 
should  be,  conservators  of  the  law.  It  is  the  right,  and  in- 
deed it  is  the  duty,  of  neutrals,  not  of  any  particular  neutral, 
to  protest  against  the  violation  of  neutral  rights. 

"Inasmuch  as  ye  have  done  it  unto  one  of  the  least  of  these, 
my  brethren,  ye  have  done  it  unto  Me." 


»  Ibid.,  p.  200. 

*  ISO  United  State*  Reporti.  479,  487. 


40 


Although  we  recognize  that  all  nations  are  equal  before,  in, 
and  under  law,  and  that  each  is  sovereign,  free  and  indepen- 
dent, we  must  nevertheless  recognize  that  they  are  in  fact  in- 
terdependent, that  the  interest  of  all  is  superior  to  the  interest 
of  any  one,  however  powerful,  and  that  therefore  the  interest 
of  the  society  of  nations,  that  is  to  say,  of  the  nations  in  asso- 
ciation, because  they  must  associate  unless  they  are  to  exist 
in  isolation,  is  greater  than  the  interest  of  any  one.  We  must 
become  conscious  of  the  existence  of  nations  in  society, 
of  their  rights  in  association  or  in  society  and  of  the  rights 
of  the  latter  as  against  the  privileges  or  rights  of  the  indi- 
vidual states.  1  do  not  need  to  prove  by  old  saw  or  modem 
instance  that  there  is  such  a  thing  as  the  society  of  nations, 
because  I  can  refer  to  the  book  and  chapter  in  which  its  ex- 
istence and  the  purposes  for  which  it  exists  are  authoritatively 
stated,  and  this  particular  book  and  chapter  is  the  joint  prod- 
uct of  all  the  civilized  states,  accepting  and  applying  interna- 
tional law  in  their  mutual  relations,  invited  to  and  partici- 
pating in  the  First  and  Second  Peace  Conferences  held  at  The 
Hague  in  1899  and  1907.  The  preamble  to  the  Peaceful  Set- 
tlement Convention  not  only  states  the  existence  of  the  society, 
but  the  reason  for  its  existence,  finding  that  reason  to  consist 
in  the  solidarity  of  nations  which  is  necessary  to  effect  the 
purposes  required  by  their  solidarity.  The  preamble  states 
the  Powers  participating  in  the  conferences  as  recognizing  "the 
solidarity  which  unites  the  members  of  the  society  of  civilized 
nations."  Now  this  simple  statement  appears  to  me  to  be 
as  fundamental  as  it  is  simple.  In  the  first  place,  it  recog- 
nizes the  interests  of  all  as  opposed  to  the  interests  of  any 
one;  in  the  second  place,  it  recognizes  that  the  interests  of  the 
whole  are  the  bond  uniting  the  nations;  in  the  third  place,  it 
states,  it  does  not  argue,  the  existence  of  the  society  of  nations, 
and,  finally,  in  the  fourth  place,  it  limits  the  society  to  the 


41 


civilized  nations,  which  to  me  at  least  seems  to  imply  that  a 
nation  can  not  be  civilized  without  belonging  to  the  society 
and  without  recognizing  the  solidarity,  that  is  to  say,  the  in- 
terests of  the  whole  as  superior  to  its  own  particular  interests. 
It  is  not  necessary  that  the  nations  should  meet  in  confer- 
ence and  declare  in  a  formal  treaty  that  the  high  contracting 
parties  recognize  that  there  are  such  bodies  politic  as  civilized 
nations,  that  these  civilized  nations  are  members  of  the  so- 
ciety of  nations  and  that  the  society  of  nations  is  united  by  the 
solidarity  of  interests  of  the  nations  as  a  whole  as  distinct 
from  the  interests  of  a  particular  nation.  Indeed,  the  recog- 
nition in  the  preamble  is  more  convincing  as  showing  that  the 
society  exists,  and  that  it  does  not  need  to  be  created  or  de- 
clared. But,  as  I  have  just  said,  the  statemer^  is  as  funda- 
mental as  it  is  simple,  because  it  is  a  fact  that  states  in 
association  or  states  recognizing  a  society  of  which  they  are 
members  constitute  a  body  politic  without  specific  agreement 
or  convention  to  that  efTect.  Important  as  is  this  fact  and  the 
conclusions  to  be  drawn  from  it,  I  do  not  need  to  prove  by 
elaborate  argument  that  the  existence  of  states  in  association 
forms  a  body  politic  without  any  action  taken  to  that  end, 
because  we  have  a  precedent  in  point  and  so  fashioned  to  our 
hand  that  we  could  almost  think  that  it  was  made  on  purpose. 
It  is  from  the  United  States,  in  which  the  international  element 
enters  so  largely  and  is  so  important.  In  order  to  make  the 
case  clear  and  its  application  inevitable,  let  me  repeat,  that 
on  July  4, 1776,  the  English  speaking  colonies  of  North  Amer- 
ica, with  the  exception  of  Canada  and  Newfoundland,  pro- 
claimed themselves  to  be  free  and  independent  states,  that 
the  Articles  of  Confederation,  composing  a  loose  union  in  the 
nature  of  a  league  and  in  which  the  states  declared  themselves 
to  be  sovereign,  free  and  independent,  were  concluded  on 
March  1,  1781,  that  the  Constitution  of  the  United  States, 
creating  a  more  perfect  union,  was  drafted  in  1787  and  went 


42 


into  effect  March  4,  1789.  Now.  the  particular  case  in  ques- 
tion, Respublica  v.  Sweers,  was  tried  and  decided  in  1779, 
previous  to  the  Articles  o'  Confederation  and  the  Constitu- 
tion, when  the  states  were  indeed  acting  together,  but  before 
they  had  adopted  any  articles  of  union  or  had  given  to  this 
union  legal  form  and  effect  As  stated  in  the  report  of  this 
interesting  case,  which  was  tried  in  the  Supreme  Court  of 
Pennsylvania — for  at  that  time  there  was  neither  formal 
union  nor  court  of  tlie  union,  supreme  or  inferior — one 
Sweers,  a  deputy  commissary-general  of  military  stores  in 
the  armies  of  the  United  States,  was  indicted  in  November, 
1778,  for  forgery  upon  two  counts,  the  first  for  altering  a  bill, 
the  second  for  forging  a  receipt,  with,  as  the  indictment  says, 
"intent  to  defraud  the  United  States."  Sweers  was  tried  be- 
fore a  special  jury  on  the  14th  of  April,  1779,  when  he  was 
convicted  upon  both  indictments.  Mr.  Chief  Justice  McKean 
of  the  Supreme  Court  of  Pennsylvania  thus  addressed  the  de- 
fendant in  delivering  sentence: 

After  a  fair  and  full  trial,  yon  have  been  convicted  of 
the  crime  of  forgery,  upon  two  indictments,  by  a  special 
jury  of  your  country.  .  .  .  Your  counsel  have  taken 
several  exceptions  to  the  form  and  substance  of  these  in- 
dictments, upon  a  motion  in  arrest  of  judgment 

The  first  exception  was,  "that  at  the  time  of  the  offense 
charged,  the  United  States  were  not  a  body  corporate 
known  in  law."  But  the  court  are  of  a  different  opinion. 
From  the  moment  of  their  association,  the  United  States 
necessarily  became  a  body  corporate;  for,  there  was  no 
superior  from  whom  that  character  could  otherwise  be 
derived.  In  England,  the  king,  lords  and  commons,  are 
certainly  a  body  corporate;  and  yet  there  never  was  any 
charter  or  statute,  by  which  they  were  expressly  so  cre- 
ated.i 


1  1  Dallas,  41,  44. 


48 


The  society  of  nations  only  needs  to  become  conscious  of 
its  existence  in  order  to  perceive  that  it  is  a  body  politic,  and 
in  order  to  draw  the  necessary  conclusions  from  its  existence 
as  a  body  politic.  The  legal  foundation  is  thus  laid  upon 
which  to  erect  any  form  of  organization,  to  create  any  agen- 
cies and  to  invest  them  with  such  power  in  the  interest  of  the 
society  ^as  to  the  civilized  nations  composing  it  may  seem  meet 
and  proper. 

If  we  return  to  Uie  Pacific  Settlement  Convention  and 
analyze  the  preamble,  we  shall  see  to  what  extent  the  nations 
have  acted  in  the  interest  of  the  society  as  such,  although  ap- 
parency unconscious  of  its  corporate  nature. 

We  find  that  the  powers  through  their  accredited  delegates 
express  in  the  first  two  paragraphs  of  the  preamble  their  pur- 
pose, stating  their  countries  to  be  "animated  by  a  strong  de- 
sire to  concert  for  the  maintenance  of  the  general  peace,"  and, 
because  of  this  desire  "resolved  to  second  by  their  best  efforts 
the  friendly  setUement  of  international  disputes."  That  is  to 
say,  they  first  express  a  desire  and  then  a  determination.  They 
next  recognize,  as  I  have  previously  stated,  the  solidarity 
which  unites  the  members  of  the  society  of  civilized  nations, 
and  by  so  doing  they  state  at  one  and  the  same  time  the  exist- 
ence of  the  society  and  the  bond  which  holds  its  members 
together.  This  bond  they  called  solidarity,  whi  I  have  in- 
terpreted to  mean  the  interests  of  all  as  distinct  from  the 
interests  of  one,  and  which  may  therefore  be  called  the  com- 
munity of  interests  as  distinguished  from  particular  or  sepa- 
rate interests.  Or,  to  express  it  in  a  more  general  and  per- 
haps more  definite  form,  the  preamble  to  the  Final  Act  of  the 
First  Conference  states  that  it  was  convoked  by  his  Majesty, 
the  Emperor  of  All  the  Russias,  "in  the  best  interests  of  hu- 
manity," and  the  preamble  of  the  Second  Conference  of  1907 
states  that  it  was  convoked  "for  the  purpose  of  giving  a  fresh 


r 


development  to  the  humanitarian  principles  which  served  as 
a  basis  for  the  work  of  the  First  Conference  of  1899."  We 
thus  have  it  stated  upon  the  hi^est  authority,  namely,  upon 
the  authority  of  the  Second  Conference,  that  the  guiding  prin- 
ciple of  the  First  was  the  best  interests  of  humanity,  and  that 
the  guiding  principle  of  the  Second  was  a  fresh  development 
of  the  principles  of  humanity  proclaimed  by  the  First  Con- 
ference. 

I  am  therefore  correct  in  stating  that  the  bond  of  union  is 
solidarity,  that  solidarity  means  a  community  of  interests  and 
that  these  interests  were,  in  the  opinion  of  the  Conference,  the 
best  interests  of  humanity.  I  would  myself  personally  state 
those  interests  in  a  single  word, — ^justice.  To  return  to  the 
preamble  to  the  Peaceful  Settlement  Convention.  After  ex- 
pressing the  desire  for  the  maintenance  of  international  peace 
and  resolving  to  settle  international  disputes  in  a  friendly 
manner,  so  as  to  preserve  peace,  and  recognizing  the  solidar- 
ity uniting  the  society  of  nations,  the  powers  represented  in 
the  First  and  in  the  Second  Hague  Peace  Conferences  pro- 
claim in  a  later  section  of  the  preamble  that  "the  security  of 
states  and  the  welfare  of  peoples"  depend  upon  "the  princi- 
ples of  equity  and  right,"  and  because  of  this  fact,  they  de- 
clare it  to  be  "expedient  to  record  in  an  international  agree- 
ment the  principles  of  equity  and  right"  on  which  they  base 
"the  security  of  states  and  the  welfare  of  peoples."  Without 
seeking  to  give  to  the  terms  of  the  preamble  a  meaning  which 
was  not  in  the  minds  of  the  delegates  or  to  pervert  their 
language  to  sustain  a  thesis,  I  am  of  the  opinion  that  we  would 
be  justified  in  concluding  that  the  "principles  of  equity  and 
right"  referred  to,  but  not  stated,  are  synonymous  with  justice, 
and  if  it  did  not  seem  to  be  presumptuous  on  our  part,  I 
would  venture  to  suggest  that  the  American  Institute  of  Inter- 
national Law  in  its  flrst  session  not  only  expressed  itself  as 


4S 


sharing  the  opinion  of  the  august  initiator  of  the  international 
peace  conference,  as  to  the  expediency  of  stating  the  princi- 
ples of  justice  in  an  international  agreement,  but  that,  per- 
haps with  the  enthusiasm  of  youUi,  it  went  further  and  stated 
and  defined  those  principles  in  its  Declaration  of  tiie  Rights 
and  Duties  of  Nations  in  Uie  form  of  an  international  agree- 
ment or  as  the  basis  of  such  an  agreement 

But,  although  the  Conference  did  not  attempt  to  define  Uie 
principles  of  equity  and  right,  they  neverUieless  expressed 
their  deliberate  opinion  that,  without  the  principles  of  equity 
and  right,  states  would  lack  security  and  the  welfare  of  peo- 
ples a  guaranty,  and  we  are,  therefore,  prepared  lo  have  them 
declare  themselves,  as  they  do  in  anotiier  part  of  the  pream- 
ble, "desirous  of  extending  the  empire  of  law  and  of  strength- 
ening the  appreciation  of  international  justice."    They  recog- 
nize, without  arguing  it,  that  justice  can  not  bring  forth  its 
perfer   fruits  unless  there  be  appropriate  agencies  for  its  ad- 
ministration; and  without  saying  that  the  mere  existence  of 
the  society  of  nations  requires  a  law  of  the  society,  they  never- 
thelei's  admit  the  necessity  of  the  law  in  proclaiming  prin- 
cip'es  of  equity  and  right  as  the  foundation  upon  which  the 
^curity  of  states  and  the  welfare  of  peoples  rest;  and  again, 
without  saying  that  an  agency  of  the  society  is  necessary  in  or- 
der to  ascertain,  to  interpret  and  to  apply  the  law  in  appropri- 
ate cases,  they  nevertheless  admit  that  such  an  agency  would 
contribute  effectively  to  maintain  the  general  peace,  to  settle 
in  a  friendly  manner  international  disputes,  to  extend  the 
empire  of  law,  and  to  strengthen  the  appreciation  of  interna- 
tional justice.    That  this  is  no  forced  construction  is  evident 
from  the  language  of  the  preamble,  according  to  which  the 
contracting  parties  are  "convinced  that  the  permanent  insti- 
tution of  a  court  of  arbitration  accessible  to  all  in  the  midst 
of  independent  powers  will  contribute  effectively  to  this  re- 


m; 


suit"  If  I  may  say  so,  the  Conferences  were  very  happy  in 
stating  the  consequences  of  establishing  an  international  court 
of  justice  and  in  defining  its  relation  to  the  powers,  for  the 
court  was  to  be  created  by  the  society,  of  which  it  is  therefore 
to  be  the  organ.  It  is  to  be  the  court  of  all,  not  the  court  of 
one,  because  it  is  to  be  accessible  to  all,  and,  finally,  and  ad- 
mirably stated,  it  is  to  be  in  the  midst  of  independent  powers. 
We  have  heard  much  of  a  free  church  in  a  free  state,  and  we 
are,  I  am  quite  sure,  destined  to  hear  much  in  the  future  of 
an  accessible  court  in  the  midst  of  independent  powers. 

The  delegates  of  the  nations  felt  it  necessary  that  the  organ 
of  the  society  which  they  called  a  court  of  arbitration  should 
have  its  procedure  stated  and  defined  in  advance,  and  it  is  not 
among  the  least  services  of  the  Conference  that  it  drafted  a 
code  of  procedure  contained  in  the  pacific  settlement  conven- 
tion for  the  arbitration  of  disputes  through  the  court  which  the 
Conference  established.  And  it  should  be  stated  in  this  con- 
nection, although  it  is  not  mentioned  in  the  preamble,  that  the 
court  created  by  the  powers  for  the  society  of  nations  was  to 
act  under  the  supervision  of  the  powers  forming  the  society 
of  nations.  For  this  purpose  the  Conference  created  a  per- 
manent administrative  council  composed  of  the  diplomatic 
representatives  of  the  signatory  powers  accredited  to  The 
Hague  and  under  the  presidency  of  the  Dutch  Minister  of 
Foreign  Affairs,  "tc  settle  its  rules  of  procedure  and  all  other 
necessary  regulations,"  to  "decide  all  questions  of  adminis- 
tration which  may  arise  with  regard  to  the  operations  of  the 
court."  to  communicate  "to  the  signatory  powers  without  de- 
lay the  regulations  adopted  by  it,"  and  to  furnish  them  "with 
an  annual  report  of  the  labors  of  the  court,  the  working  of 
the  administration,  and  the  expenditure." 

Now,  my  purpose  in  dwelling  upon  the  preamble  and  in 
calling  to  your  attention  the  administrative  council  is  to  make 


47 


it  clear  that  the  Conference,  unconsciously  it  may  be,  but 
nevertheless  assuredly,  went  a  long  way  to  recognise  certain 
fundamentals  of  organization  with  which  the  delegates  were 
familiar  in  their  own  countries,  but  which  had  not  been  hith- 
erto applied  to  the  nations  as  a  whole.  Thus,  the  Conference 
recognized,  first,  the  existence  of  a  society  of  nations  com- 
posed of  the  civilized  states  bound  together  by  a  community 
of  interests:  second,  the  function  of  the  Conference  as  a  fac- 
tor in  developing  "the  humanitarian  principles"  which  I  have 
ventured  to  idenUfy  with  justice;  third,  the  necessity  of  a 
court  for  the  society  in  order  to  administer  justice  between 
and  among  the  civilized  states  forming  the  society,  by  defin- 
ing, by  interpreting  and  applying  tiie  rule  of  law  to  disputes 
between  and  among  Uiem;  and  fourth,  the  advisability  of  a 
permanent  administrative  council,  composed  of  the  contract- 
ing members  of  Uie  society  of  nations  to  establish  the  court 
as  die  organ  or  agency  of  the  society  and  to  supervise  iU  con- 
duct 

We  have  here  an  unconscious  recognition  it  may  be  of  the 
three-fold  division  of  powers  in  a  political  society,  for  the 
society  of  nations  is  a  political  association  and  is,  if  it  chooses 
to  be,  a  body  politic.  In  Uie  Hague  Conferences  we  recognize 
an  international  body  which  recommends,  if  it  does  not  ac- 
tually make,  laws  for  Uie  society,  because  the  conventions  and 
declarations  drafted  by  the  delegates,  and  approved  by  Uie 
Conference,  are  transmitted  by  the  Dutch  Minister  of  For- 
eign Affairs  to  the  civilized  powers  forming  the  society  of 
nations,  to  be  ratified  by  the  appropriate  branches  of  Uie  con- 
tracting parties  and  to  be  adhered  to  by  Uie  appropriate 
branches  of  the  powers  which  did  not  attend  the  Conference, 
should  they  be  minded  to  unite  themselves  with  Uie  contract- 
ing powers.  In  the  administrative  councU  we  recognize  the 
germ  of  an  executive,  Uiat  is  to  say,  of  a  body  to  carry  into 


48 


k 


effect  the  projects  of  the  Conference  which  have  been  ratified 
by  the  nations  and  to  supervise  their  execution  and  operation. 
We  also  recognize  in  the  proposal  of  a  coart  of  arbitration  the 
first  step  towards  an  international  judiciary,  as  the  organ  or 
agent  of  the  society,  just  as  a  judiciary  is  an  organ  or  agent 
of  every  member  of  the  society  of  nations. 

Believing,  as  I  do,  that  international  organization  is  the 
question  of  the  day  and  that  it  must  confront  us  until  it  is 
solved,  that  the  relations  of  nations  can  only  be  peaceable  if 
they  are  based  upon  justice,  I  am  convinced  that  there  must 
first  be  some  agency  of  the  society  to  recommend,  if  not  to 
make,  the  law  which  is  to  govern  the  conduct  of  nations;  that 
there  must,  second,  be  some  agency  of  the  society  to  notify 
the  powers  in  order  that  the  recommendations  of  the  Confer- 
ence may  be  ratified:  to  call  to  their  attention  the  terms  of 
such  acts  of  the  Conference  as  have  been  ratified  in  order  to 
prevent  their  violation,  and  to  exercise  such  supervision  us  the 
society  may  decide  to  be  compatible  with  the  independence  of 
its  members  on  the  one  hand  and  their  solidarity  on  the  other, 
and  that  third,  there  must  be  a  court  of  the  society  to  ascer- 
tain, to  interpret  and  to  apply  the  law  of  nations,  customary 
or  conventional,  to  the  disputes  which  necessarily  must  arise 
between  and  among  the  members  of  the  society,  if  peace 
founded  upon  justice  is  ever  to  prevail  in  a  war-ridden  world. 

I  have  ventured  to  put  together  certain  suggestions  which 
have  been  made  from  time  to  time,  and  which  if  adopted  seem 
to  me  calculated  to  advance  the  cause  of  international  organ- 
ization. I  have  already  invoked  Aesop's  authority  in  the 
course  of  this  address  and  I  would  like  to  invoke  it  again,  as 
his  fable  of  the  Mice  in  Council  seems  peculiarly  applicable: 


Once  upon  a  time  [he  said]  all  the  Mice  met  together 
in  Council,  and  discussed  the  best  means  of  securing 
themselves  against  the  attacks  of  the  Cat.     After  several 


t' 


■uggctUons  had  been  debated,  a  Mouse  of  Mine  standing 
and  experience  got  up  and  said.  "I  think  1  have  hit  upon 
a  plan  which  will  ensure  our  safety  in  the  future,  pro- 
vided you  approve  and  carry  it  out  It  is  that  we  should 
fasten  a  bell  round  the  neck  of  our  enemy  the  Cat,  which 
will  by  its  tinkling  warn  us  of  her  approach."  This  pro- 
posal was  warmly  applauded,  and  it  had  been  already 
decided  to  adopt  it.  when  an  old  Mouse  got  upon  his  feet 
and  said,  "I  agree  with  you  all  that  the  plan  before  us  is 
an  admirable  one:  but  may  1  ask  who  is  going  to  bell  the 
Catr 


If 

t 


The  question  thus  propounded  still  awaits  an  answer. 
Nevertheless,  with  a  full  appreciation  of  the  diflicultics  with 
which  the  subject  bristles,  and.  I  hope,  a  due  and  a  becoming 
sense  of  modesty.  I  venture  to  lay  before  you  my  little  bell, 
or.  rather,  a  whole  series  of  bells,  well  knowing  that,  without 
charity,  they  will  merely  be  "as  sounding  brass,  or  a  tinkling 
cymbal;"  and  I  do  so  in  the  hope  that,  if  you  applaud  the 
project  and  decide  to  adopt  it,  the  nations  themselves  may  be 
trusted  to  bell  their  enemy.    Let  me  read  the  project. 

I  believe  it  to  be  feasible,  and  also  to  be  the  part  of  wisdom : 

1.  To  urge  the  call  of  a  Third  Hague  Conference  to 
which  every  countrj'  belonging  to  the  society  of  nations 
shall  be  invited  and  in  whose  proceedings  every  such 
country  shall  participate. 

2.  To  advocate  a  stated  meeting  of  The  Hague  Peace 
Conference  which,  thus  meeting  at  regular,  stated  pe- 
riods, will  become  a  recommending  if  not  a  law-making 
body. 

3.  To  suggest  an  agreement  of  the  States  forming  the 
society  of  nations  concerning  the  call  and  procedure  of 
the  Conference,  by  which  that  institution  shall  become 
not  only  internationalized,  but  in  which  no  nation  shall 
take  as  of  right  a  preponderating  part. 

4.  To  request  the  appointment  of  a  committee,  to  meet 


M 


i 


at  regular  inlervala  between  the  Conferenect,  charged 
with  the  duty  of  procuring  the  ratification  of  the  Conven- 
tions and  Dedarationa  and  of  calling  attention  to  the 
Convention*  and  Declaration!  in  order  to  enaure  their 
observance. 

5.  To  recommend  an  understanding  upon  certain  fun- 
damental principleii  of  international  law,  as  set  forth  in 
the  Declaration  of  the  Ri^ts  and  Duties  of  Nations 
adopted  by  the  American  Institute  of  International  Law 
on  January  6,  1916,  which  are  themselves  based  upon  de- 
cisions of  English  Courts  and  of  the  Supreme  Court  of 
the  United  States. 

6.  To  propose  the  creation  of  an  iiitemational  council 
of  conciliation  to  consider,  to  discuss,  and  to  report  upon 
such  questions  of  a  non-justiciable  character  as  may  be 
submitted  to  such  council  by  an  agreement  of  the  powers 
for  this  purpose. 

7.  To  commend  the  employment  of  good  offices,  medi- 
ation, and  friendly  composition  for  the  settlement  of  dis- 
putes of  a  non-justiciable  nature. 

8.  To  approve  the  principle  of  ari)itration  in  the  settle- 
ment of  disputes  of  a  non-justiciable  nature;  also  of  dis- 
putes of  a  justiciable  nature  which  should  be  decided  by 
a  court  of  justice,  but  which  have,  throu^  delay  or  mis- 
management, assumed  such  political  importance  that  the 
nations  prefer  to  submit  them  to  artiiters  of  their  own 
choice  rather  than  to  judges  of  a  permanent  judicial  tri- 
bunaL 

9.  To  insist  upon  the  negotiation  of  a  convention  cre- 
ating a  Judicial  union  of  the  nations  along  the  lines  of  the 
Universal  Postal  Union  of  1906,  to  which  all  civilized  na- 
tions and  self-governing  dominions  are  parties,  pledging 
the  good  faith  of  the  contracting  parties  to  submit  their 
justiciable  disputes — that  is  to  say,  their  differences  in- 
volving law  or  equity — to  a  permanent  court  of  this  union, 
whose  decisions  will  bind  not  only  the  litigating  nations, 
but  also  all  parties  to  its  creation. 

10.  To  endeavor  to  create  an  enli^tened  public  opin- 
ion in  behalf  of  peaceable  settlement  in  general,  and  in 


particular  in  behalf  of  the  foregoing  nine  propoi»»..„4, 
in  order  that.  If  agreed  to,  they  may  be  put  into  practice 
and  become  effective,  in  reaponte  to  the  appeal  to  that 
greatest  of  uncUona.  "a  decent  respect  to  Uie  opinions 
of  mankind.** 

Let  me  quote,  and.  by  quoting,  malce  my  own  as  far  as  one 
can,  Uie  words  of  tiie  great,  tiie  wise,  and  Uie  generous  French 
statesman.  Mr.  Bourgeois,  whose  language  I  have  already 
quoted,  uttered  in  a  moment  of  inspiration  at  the  Second 
Hague  Peace  Conference  and  in  advocacy  of  the  very  prin- 
ciples  for  which  Uie  American  Institute  of  International  Law 
stands: 


The  world  longs  for  peace. 

For  centuries  we  have  put  our  faitii  exclusively  in  tiie 
formula :  Si  vis  pacem.  para  bellum:  tiiat  is  to  say,  we 
have  confined  ourselves  to  tiie  military  organization  of 
peace.  We  have  got  beyond  Uiis.  but  we  should  not  be 
satisfled  in  forming  a  more  humane  organization,  which 
I  was  about  to  call  the  pacific  organization  of  war. 

The  discussions  which  have  taken  place  here  in  our 
midst  have  shown  us  Uie  progress  made  in  our  views  in 
tills  matter  tiirough  education,  and  Uie  new  sentiment, 
each  day  more  insistent,  of  tiie  soUdarity  alike  of  nations 
and  of  mankind  in  Uie  struggle  against  the  fatality  of 
nature.  We  have  confidence  in  the  increasing  effect  of 
these  great  moral  forces,  and  we  hope  Uiat  the  Confer- 
ence of  1907  will  force  a  still  fuHher  development  of  the 
humane  principles  which  guided  Uie  Conference  of  1899. 
by  assuring  in  fact  as  well  as  in  theory  the  juridical  or- 
ganization of  peace.^ 


'  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Aetet  et  Docu- 
menti,  tome   ii,  p.  349. 


52 


I' 


Mr.  President,  Ladies  and  Gentlemen: 

I  can  not  close  the  address  I  have  prepared  for  the  open- 
ing session  and  which  has,  I  am  sure,  severely  taxed  your 
patience,  without  expressing  the  very  great  pleasure  which 
your  invitation  has  given  us  to  meet  in  the  city  of  Habana, 
and  without  the  assurance  that  the  realization  is  greater  than 
the  anticipation,  for  who  does  not  look  forward  to  a  visit  to 
Habana. 

The  Institute  and  its  members  hope  to  show  themselves 
worthy  of  your  consideration  and  of  your  courtesy,  and,  while 
we  shall  always  look  back  to  the  Habana  session  with  pleas- 
ure and  with  pride,  we  cherish  the  hope  that  you  may  never 
regret  opening  your  city  and  your  hearts  to  us. 

I  have  taken  the  liberty  of  offering  in  the  introduction  some 
remarks  upon  the  Piatt  Amendment,  which  1  regard  as  a  pro- 
tection against  an  assault  from  without,  as  a  bulwark  against 
niisgovemment  from  within,  and  as  a  shield  and  a  buckler 
even  against  the  great  republic  to  the  north,  should  it  be  in- 
clined to  forget  the  responsibility  it  assumed  and  the  solemn 
promise  it  gave  to  a  generous,  devoted  and  trusting  people. 

1  believe  that  Cuba  will  always  be  free  and  independent 
1  hope  that  the  United  States  will  always  stand  by  its  promise. 
In  this  belief  I  shall  live  and  in  this  hope  1  shall  die. 


THE  RECOMMENDATIONS  OF  HABANA  CONCERNING  INTER. 
NATIONAL  ORGANIZATION,  adopted  by  the  American 
institute  of  International  Law  at  its  Second  Seuion  in 
the  Oty  of  Habana,  January  23, 1917. 

WHEREAS  the  independent  existence  of  civilized  naUons 
and  their  solidarity  of  interests  under  the  condiUons  of  modern 
life  has  resulted  in  a  society  of  nations;  and 

WHEREAS  the  safety  of  nations  and  the  welfare  of  their 
peoples  depend  upon  the  application  to  them  of  principles  of 
law  and  equity  in  their  mutual  relitions  as  members  of  civ- 
ilized society:  ar 

WHEREAS  the  iaw  of  nations  can  best  be  formulated  and 
stated  by  the  nations  assembled  for  this  purpose  in  interna- 
tional conferences;  and 

WHEREAS  it  is  in  the  interest  of  the  society  of  nations  tiiat 
international  agreements  be  made  effective  by  ratification  and 
observance  on  all  occasions,  and  tiiat  some  agency  of  tiie  so- 
ciety of  nations  be  constituted  to  act  for  it  during  Uie  intervals 
between  such  conferences;  and 

WHEREAS  the  principles  of  law  and  equity  can  best  be  as- 
certained  and  applied  to  the  disputes  between  and  among  Uie 
nations  by  a  court  of  justice  accessible  to  all  in  the  midst  of 
the  independent  Powers  forming  the  society  of  civilized  na- 
tions; 

THEREFORE  the  American  Institute  of  International  Law. 
at  its  second  session,  held  in  the  City  of  Habana.  in  the  Re- 
public of  Cuba,  on  the  23d  day  of  January,  1917,  adopts  the 
following  recommendations,  to  be  known  as  its  Recommenda- 
tions of  Habana. 


.  '^  I 


M 


/.  The  call  of  a  Third  Hague  Conference  to  which  every 
country  belonging  to  the  society  of  nations  shall  be  invited 
and  in  whose  proceedings  every  such  country  shall  participate. 

II.  A  stated  meeting  of  the  Hague  Peace  Conference  which, 
thus  meeting  at  regular,  stated  periods,  will  become  a  recom- 
mending if  not  a  law-making  body. 

III.  An  agreement  of  the  States  forming  the  society  of  na- 
tions concerning  the  call  <md  procedure  of  the  Conference,  by 
which  that  institution  shall  become  not  only  internationalized, 
but  in  which  no  nation  shall  take  as  of  right  a  preponderating 
part. 

IV.  The  appointment  of  a  committee,  to  meet  at  regular  in- 
tervals between  the  Conferences,  charged  with  the  duty  of 
procuring  the  ratification  of  the  Conventions  and  Declara- 
tions and  of  calling  attention  to  the  Conventions  and  Declara- 
tions in  order  to  insure  their  observance. 

V.  An  understanding  upon  certain  fundamental  principles 
of  international  law,  as  set  forth  in  the  Declaration  of  the 
Rights  and  Duties  of  Nations  adopted  by  the  American  Insti- 
tute of  International  Law  on  January  6, 1916,  which  are  them- 
selves based  upon  decisions  of  English  courts  and  of  the 
Supreme  Court  of  the  United  States. 

VI.  The  creation  of  an  international  council  of  conciliation 
to  consider,  to  discuss,  and  to  report  upon  such  questions  of  a 
non-justiciable  character  as  may  be  submitted  to  such  council 
by  an  agreement  of  the  Powers  for  this  purpose. 

VII.  The  employment  of  good  offices,  mediation,  and 
friendly  composition  for  the  settlement  of  disputes  of  a  non- 
justiciable nature. 

VIII.  The  principle  of  arbitration  in  the  settlement  of  dis- 
putes of  a  non-justiciable  nature:  also  of  disputes  of  a  justici- 
able nature  which  should  be  decided  by  a  court  of  justice,  but 
which  have,  through  delay  or  mismanagement,  assumed  such 


55 

political  importance  that  the  nation*  prefer  to  submit  them  to 
arbiter*  of  their  own  choice  rather  than  to  judge*  of  a  perma- 
nent judicial  tribunal. 

IX.  The  negotiation  of  a  convention  creating  a  judicial 
union  of  the  nation*  along  the  line*  of  the  Vniver*al  Po*tal 
Union  of  1906.  to  which  all  civilized  nation*  and  *elf-gooem- 
ing  dominion*  are  partie*.  pledging  the  good  faith  of  the  con- 
tracting partie*  to  *ubmit  their  ju*ticiable  di*putet—that  it  to 
*ay.  their  difference*  involving  law  or  equity— to  a  permanent 
court  of  thi*  union,  who*e  decuion*  will  bind  not  only  the  liti- 
gating nation*,  but  al*o  all  partie*  to  it*  creation. 

X.  The  creation  of  an  enlightened  public  opinion  in  behalf 
of  peaceable  *ettlement  in  general,  and  in  particular  in  behalf 
of  the  foregoing  nine  propo*ition*.  in  order  that,  if  agreed  to. 
they  may  be  put  into  practice  and  become  effective,  in  re- 
*pon*e  to  the  appeal  to  that  greate*t  of  *anction».  "a  decent 
re*pect  to  the  opinion*  of  mankind." 


1-1*  i, 


::l 


Commentary  on  the  ReconimemUtions  of  Habena  Con- 
cerning International  Organization,  Adopted  January 
23, 1917. 

/.  The  call  of  a  Third  Hague  Conference  to  which  every 
country  belonging  to  the  society  of  nations  shall  be  invited 
and  in  whose  proceedings  every  such  country  shall  participate. 

If  it  be  true  that  in  a  multitude  of  counselors  there  is  safety 
and,  as  we  may  hope,  wisdom,  it  necessarily  follows  that  the 
larger  the  number  of  the  nations  met  in  conference  the  greater 
the  safety  and  the  greater  the  wMcl^^m.  Indeed,  there  are 
those,  whose  opinions  are  entitled  to  respect,  who  see  in  the 
meeting  of  the  Hague  Conferences  a  greater  hope  and  a 
greater  promise  than  in  the  work  of  their  hands.  The  Hague 
Conference  of  1899  was  composed  of  the  representatives  of 
twenty-six  States;  its  successor  of  1907  represented  officially 
no  less  than  forty-four  sovereign,  free,  and  independent  States, 
which,  taken  together,  well  nigh  make  up  the  society  of  civ- 
ilized nations. 

In  speaking  of  the  value  of  the  Hague  Peace  Conferences  of 
1899  and  1907,  Secretary  Root  said  that: 

The  most  valuable  result  of  the  Conferences  of  1899 
was  that  it  made  the  work  of  the  Conference  of  1907  pos- 
sible. The  achievements  of  the  Conferences  justify  the 
belief  that  the  world  has  entered  upon  an  orderly  process 
through  which,  step  by  step,  in  successive  Conferences, 
each  taking  the  work  of  its  predecessor  as  its  point  of  de- 
parture, there  may  be  continual  progress  toward  making 
the  practice  of  civilized  nations  conform  to  their  peace- 
ful professions. 

And,  still  further  developing  the  same  thought,  the  same 
great  statesman  said: 


87 

The  question  about  each  interaational  conference  is  not 
merely  what  it  has  accomplished,  but  also  what  it  has  be- 
gun, and  what  it  has  moved  forward.  Not  only  the  con- 
ventions signed  and  ratified,  but  the  steps  taken  toward 
conclusions  which  may  not  reach  practical  and  effective 
form  for  many  years  to  come,  are  of  value.  Some  of  the 
resolutions  adopted  by  the  last  conference  do  not  seem  to 
amount  to  very  much  by  themselves,  but  each  one  marks 
on  some  line  of  progress  the  farthest  point  to  which  the 
wor<d  is  yet  willing  to  go.  They  are  like  cable  ends 
buoyed  in  mid-ocean,  to  be  picked  up  hereafter  by  some 
other  steamer,  spliced,  and  continued  to  shore.  The 
greater  the  reform  proposed,  the  longer  must  be  the 
process  required  to  bring  many  nations  differing  widely 
in  their  laws,  customs,  traditions,  interests,  prejudices, 
into  agreement  Each  necessary  step  in  the  process  is  as 
useful  as  the  final  act  which  crowns  the  worit  and  is  re- 
ceived with  public  celebration. 

//.  A  stated  meeting  of  the  Hague  Peace  Conference  which, 
thus  meeting  at  regular,  stated  periods,  will  become  a  recom- 
mending if  not  a  law-making  body. 

Without  a  radical  reorganization  of  the  society  of  nations, 
difficult,  time-consuming,  and  perhaps  impossible  to  bring 
about,  the  Conventions  and  Declarations  adopted  by  the  Con- 
ference are  to  be  considered  not  as  international  statutes,  but 
as  recommendations,  which  must  be  submitted  to  the  nations 
taking  part  in  the  Conference  for  their  careful  examination 
and  approval.  By  the  ratification  of  each  of  these,  and  by  the 
deposit  of  the  ratifications  at  The  Hague  in  accordance  with 
the  terms  of  the  Conventions  and  Declarations  recommended 
by  the  Conference,  they  become  at  one  and  the  same  time  na- 
tional and  international  laws:  national  laws  because  they 
have  been  ratified  by  the  law-making  body  of  each  of  the 
countries,  and  international  laws  because,  by  the  ratification 
and  the  deposit  of  the  ratifications  at  The  Hague,  they  have 


68 

assumed  the  form  and  effect  of  treaties,  that  is  to  say  statutes, 
of  the  contracting  parties. 

On  the  method  of  procedure  of  such  an  international  con- 
ference. Secretary  Root  said  in  his  instructions  to  the  Dele- 
gates of  the  United  States  to  the  Second  Hague  Peace  Con- 
ference : 


In  the  discussions  upon  every  question  it  is  important 
to  remember  that  the  object  of  the  Conference  is  agree- 
ment, and  not  compulsion.  If  such  Conferences  are  to  be 
made  occasions  for  trying  to  force  nations  into  positions 
which  they  consider  against  their  interests,  the  Powers 
can  not  be  expected  to  send  representatives  to  them. 
It  is  important  also  that  the  agreements  reached  shall  be 
genuine  and  not  reluctant  Otherwise  they  will  inevitably 
fail  to  receive  approval  when  submitted  for  the  ratifica- 
tion of  the  Powers  represented.  Comparison  of  views 
and  frank  and  considerate  explanation  and  discussion 
may  frequently  resolve  doubts,  obviate  difBculties,  and 
lead  to  real  agreement  upon  matters  which  at  the  outset 
have  appeared  insurmountable.  It  is  not  wise,  however, 
to  carry  this  process  to  the  point  of  irritation.  After  rea- 
sonable discussion,  if  no  agreement  is  reached,  it  is  bet- 
ter to  lay  the  subject  aside,  or  refer  it  to  some  future  Con- 
ference in  the  hope  that  intermediate  consideration  may 
dispose  of  the  objections.  Upon  some  questions  where 
an  agreement  by  only  a  part  of  the  Powers  represented 
would  in  itself  be  useful,  such  an  agreement  may  be  made, 
but  it  should  always  be  with  the  most  unreserved  recog- 
nition that  the  other  Powers  withhold  their  concurrence 
with  equal  propriety  aud  ri^L 

You  should  keep  always  in  mind  the  promotion  of  this 
continuous  process  through  which  the  progressive  devel- 
opment of  international  justice  and  peace  may  be  carried 
on;  and  you  should  regard  the  work  of  the  Second  Con- 
ference, not  merely  with  reference  to  the  definite  results  to 
be  reached  in  that  Conference,  but  also  with  reference  to 
the  foundations  which  may  be  laid  for  further  results  in 


59 

future  Conferences.  It  may  well  be  that  iiniong  the  most 
valuable  services  rendered  to  civilization  by  this  Second 
Conference  will  be  found  the  progress  made  in  matters 
upon  which  the  delegates  reach  no  definite  agreement 

The  irreducible  minimum  may  well  be  the  maximum  of 
achievement  at  any  given  time,  and  in  all  our  meetings,  and 
in  all  our  discussions,  we  should  bear  in  mind  the  wise  counsel 
of  an  illustrious  French  statesman  at  the  First  and  Second 
Hague  Peace  Conferences  that: 

We  are  here  to  unite,  not  to  be  counted. 

///.  An  agreement  of  the  States  forming  the  Mociety  of  na- 
tions concerning  the  call  and  procedure  of  the  Conference,  by 
which  that  institution  shall  become  not  only  internationalized, 
but  in  which  no  nation  shall  take  as  of  right  a  preponderating 
pari. 

The  delegation  of  the  United  States  to  the  Second  Hague 
Peace  Conference  was  thus  instructed  by  the  great  and  wise 
statesman,  then  Secretary  of  State: 

"You  will  favor  the  adoption  of  a  resolution  by  the  Con- 
ference providing  for  the  holding  of  further  Conferences 
within  fixed  periods  and  arranging  the  machinery  by 
which  such  Conferences  may  be  called  and  the  terms  of 
the  program  may  be  arranged,  without  awaiting  any  new 
and  specific  initiative  on  the  part  of  the  Powers  or  any 
one  of  them. 

Mr.  Root  then  went  on  to  say: 

Encouragement  for  such  a  course  is  to  be  found  in  the 
successful  working  of  a  similar  arrangement  for  interna- 
tional conferences  of  the  American  Republics.  The  Sec- 
ond American  Conference,  held  in  Mexico  in  1901-2, 
adopted  a  resolution  providing  that  a  third  conference 
should  meet  within  five  years,  and  committed  the  time 


60 

and  place  and  the  program  and  neceuary  details  to  the 
Department  of  State  and  representatives  of  the  American 
States  in  Washington.  Under  this  authority  the  Third 
Conference  was  called  and  held  in  Rio  de  Janeiro  in  the 
summer  of  1906,  and  accomplished  results  of  substantial 
value.   That  Conference  adopted  the  following  resolution : 

"The  governing  board  of  the  International  Bureau  of 
American  Republics  (composed  of  the  same  official  rep- 
resentatives in  Washington)  is  authorized  to  designate 
the  place  at  which  the  Fourth  International  Conference 
shall  meet,  which  meeting  shall  be  within  the  next  five 
years;  to  provide  for  the  drafting  of  the  program  and 
regulations  and  to  take  into  consideration  all  other  neces- 
sary details;  and  to  set  another  date  in  case  the  meeting 
of  the  said  Conference  can  not  take  place  within  the  pre- 
scribed limit  of  time." 

There  is  no  apparent  reason  to  doubt  that  a  similar  ar- 
rangement for  successive  general  international  confer- 
ences of  all  the  civilized  Powers  would  prove  as  practi- 
cable and  as  useful  as  in  the  case  of  the  twenty-one  Ameri- 
can States. 

The  delegation  of  the  United  States  complied  with  both  the 
letter  and  spirit  of  these  instructions,  brought  the  subject  of 
a  stated  international  conference  to  the  attention  of  the  dele- 
gates of  the  forty-four  nations  there  assembled,  and  secured 
the  following  recommendation,  a  first  step  toward  the  realiza- 
tion of  a  larger  purpose: 

Finally,  the  Conference  recommends  to  the  Powers  the 
assembly  of  a  Third  Peace  Conference,  which  might  be 
held  within  a  period  corresponding  to  that  which  has 
elapsed  since  the  preceding  Conference,  at  a  date  to  be 
fixed  by  common  agreement  between  the  Powers,  and  it 
calls  their  attention  to  the  necessity  of  preparing  the  pro- 
gram of  this  Third  Conference  a  sufficient  time  in  ad- 
vance to  ensure  its  deliberai.ons  being  conducted  with  the 
necessary  authority  and  expedition. 


In  order  to  attain  this  object  the  Conference  considers 
that  it  would  be  very  desirable  that,  some  two  years  be- 
fore the  probable  date  of  the  meeting,  a  preparatory  com- 
mittee should  be  charged  by  the  governments  with  the 
task  of  collecting  the  various  proposals  to  be  submitted 
to  the  Conference,  of  ascertaining  what  subjects  are  ripe 
for  embodiment  in  an  international  regulation,  and  of 
preparing  a  program  which  the  governments  should  de- 
cide upon  in  sufficient  time  to  enable  it  to  be  carefully 
examined  by  the  countries  interested.  This  coniinittce 
should  further  be  intrusted  with  the  task  of  proposing  a 
system  of  organization  and  procedure  for  the  Conference 
itself. 


IV.  The  appointment  of  a  committee,  to  meet  at  regular  in- 
tervals between  the  Conferences,  charged  with  the  duty  of 
procuring  the  ratification  of  the  Conventions  and  Declara- 
tions and  of  calling  attention  to  the  Conventions  and  Declara- 
tions in  order  to  insure  their  observance. 

In  Mr.  Root's  instructions  to  the  American  delegation  to  the 
Second  Hague  Peace  Conference,  the  governing  board  of  the 
International  Bureau  of  American  Republics,  now  called  the 
Pan  American  Union,  was  suggested  as  a  possible  method  of 
organization  for  the  nations  meeting  in  conference  at  The 
Hague.  The  American  delegation  did  not  lay  before  the  Con- 
ference the  method  of  organization  found  satisfactory  to  the 
American  Republics  and  did  not  propose  that  it  be  adopted, 
because,  as  the  result  of  private  discussion,  it  appeared  un- 
likely that  the  method  would  at  that  time  meet  with  favor, 
and  indeed  it  seemed  probable  that  its  proposal  would  preju- 
dice those  representatives  of  governments  against  the  periodic 
meeting  of  conferences  who  thought  they  saw  in  cooperation 
of  this  kind  a  step  toward  federation. 

There  is,  however,  a  body  already  in  existence  at  The  Hague, 
similar  in  all  respects  to  the  governing  board  of  the  Pan 


hi; 


American  Union  at  Washington,  whidi  can  be  used  for  like 
purposes  if  tlie  governments  only  become  conscious  of  the 
services  which  it  could  render  if  it  were  orgauiied  and  in- 
vested with  certain  powers.  The  body  at  Washington  forming 
the  governing  board  is  composed  of  the  diplomatic  representa- 
tives of  the  American  Republics  accredited  to  the  United 
States:  the  body  at  The  Hague  is  formed  of  the  diplomatic 
representatives  of  the  Powers  accredited  to  the  Netheriands. 
If  they  should  be  authorized  by  their  respective  governments 
to  meet,  either  in  the  Foreign  Office  or  the  Peace  Palace  at  The 
Hague  at  regular  intervals  between  the  conferences,  to  be  de- 
termined by  themselves  or  their  countries,  they  would,  by 
the  mere  fact  of  this  association,  form  a  governing  board  in 
which  all  nations  would  of  right  be  represented  which  cared 
to  maintain  diplomatic  agents  at  The  Hague.  By  the  mere 
fact  of  this  association  they  would  also,  even  without  express 
authority,  gradually  and  insensibly  assume  the  duty  of  pro- 
curing the  ratification  of  the  Conventions  and  Declarations  of 
the  Conference  and  of  calling  the  attention  of  the  Powers  rep- 
resented at  The  Hague  to  the  Conventions  and  Declarations, 
and  in  case  of  need  to  their  provisions,  in  order  that  they 
might  be  observed. 

The  first  step  toward  this  consummation  has  already  been 
taken.  Twenty-six  nations  at  the  First  created  and  forty-four 
nations  confirmed  at  the  Second  Hague  Peace  Conference  an 
organization  for  administering  the  affairs  of  the  so-called  Per- 
manent Court  of  Arbitration  by  availing  themselves  of  the 
diplomatic  agents  accredited  to  The  Hague,  as  shown  in  the 
following  extract  from  the  Convention  for  the  Pacific  Settle- 
ment of  International  Disputes: 


A  Permanent  Administrative  Council,  composed  of  the 
diplomatic  representatives  of  the  signatory  Powers  ac- 
credited to  The  Hague  and  of  the  Netherlands  Minister 


for  Foreign  Affaim.  who  will  act  as  president,  shall  be  in- 
sUtutcd  in  this  town  as  soon  as  possible  after  the  ratiflca- 
tton  of  the  present  Act  by  at  least  nine  Powers. 

lliis  Council  wiU  be  charged  with  the  establishment 
and  organization  of  the  International  Bureau  [of  ttie  Per- 
manent Court  of  Arbitration],  which  wiU  be  under  iu 
direction  and  control. 

It  will  notify  to  Uie  Powers  tiie  constitution  of  tiie 
Court,  and  will  provide  for  its  installation. 

It  wiU  settie  its  rules  of  procedure  and  all  otiier  neces- 
sary regulations. 

It  will  decioe  all  questions  of  administration  which  may 
arise  wiUi  regard  to  tiie  operations  of  the  Court 

It  will  have  entire  control  over  the  appointinent.  sus- 
pension, or  dismissal  of  tiie  officials  and  employes  of  tiie 
Bureau. 

It  will  fix  the  payineuts  and  salaries,  and  control  Uie 
general  expenditure. 

At  meetings  duly  summoned  tiie  presence  of  five  mem- 
bers is  sufficient  to  render  valid  tiie  discussions  of  tiie 
Coundl.    The  decisions  are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  tiie  signatory  Powers 
wiUiout  delay  tiie  regulations  adopted  by  it.  It  furnishes 
tiiem  witii  an  annual  report  on  tfie  labors  of  flie  Court,  the 
working  of  ttie  administa-ation.  and  the  expenses. 

What  has  been  done  for  one  may  assuredly  be  done  for 
anotiier  purpose,  and.  wittiout  changing  the  body.  Uie  nations 
merely  need  to  enlarge  its  scope  by  having  it  perform  tiie 
-ame  services  for  each  of  tiie  general  interests  affecting  "tfie 
solidarity  which  unites  tfie  members  of  tiie  society  of  civilized 
nations."  If  a  governing  board  may  act  at  Washington  witii- 
out  affecting  tfie  sovereignty,  freedom,  and  independence  of 
twenty-one  States,  a  governing  board  can  likewise  act  at  The 
Hague  in  tfie  interest  of  and  witfiout  affecting  the  sovereignty, 
freedom,  and  independence  of  forty-four  States.  There  is 
only  one  tiling  needed—the  desire  so  to  do. 


A4 


In  the  belief  that  the  Power*  may  prefer  to  proceed  more 
cautiously,  the  American  Institute  of  International  Law  ven- 
tures to  suggest  on  this  point  that  the  Conference  might,  upon 
its  adjournment,  appoint  a  committee  charged  with  the  duty 
of  procuring  the  ratiflcation  of  the  Conventions  and  Declara- 
tions,  and  of  calling  attention  to  the  Conventions  and  Declara- 
tions in  order  to  secure  their  observance;  and  in  the  appoint- 
ment of  the  committee  the  Conference  might  specify  lx)th  the 
nature  and  extent  of  the  authority  with  which  it  would  be 
clothed.  This  would  not  be  an  attempt  on  the  part  of  a  Con- 
ference to  bind  its  successor;  it  would  be  a  recommendation 
of  the  Conference  to  the  Powers  represented  in  it,  the  binding 
force  and  effect  of  which  would  result  solely  from  the  accept- 
ance and  ratiflcation  of  the  agreement,  as  is  the  case  with  The 
Hague  Conventions  or  Declarations. 

The  appointment  of  such  a  committee  for  limited  and  spe- 
ciflc  purposes  is  highly  desirable,  if  other  and  better  methods 
are  not  devised  and  preferred,  and  it  is  not  without  a  prece- 
dent in  its  behalf  and  favor.  Under  the  9th  of  the  Articles 
of  Confederation  of  the  United  States  the  Congress  appointed 
"a  committee  of  the  States,"  composed  of  one  dele(  ie  from 
each  of  the  thirteen  States,  to  sit  during  the  recess  of  the  Con- 
gress, then  a  diplomatic,  not  a  parliamentary  body,  to  look 
after  the  interests  of  the  States  as  a  whole  and  to  exercise 
some,  but  not  all,  of  the  powers  delegated  to  the  Congress  by 
the  States,  which  in  the  2d  of  the  Articles  had  declared 
themselves  to  be  sovereign,  free,  and  independent.  It  is  im- 
portant to  note  that  in  the  Articles  of  Confederation  we  are 
dealing  with  sovereign  States  and  to  bear  in  mind  that  sov- 
ereignty is  not  lessened  by  its  mere  exercise,  because  after 
as  before  the  Articles  the  States  were  sovereign.  What  thir- 
teen sovereign,  free,  and  independent  States  have  done,  forty- 
four  sovereign,  free,  and  independent  States  may  do,  if  thev 


as 

only  can  be  made  to  feel  and  to  see  the  con^quences  of  this 
aimple  step  in  InternaUonal  development  and  .upervWon 

In  further  JuatiilcaUon  of  thi.  mode.t  recommendaUon.*  the 
pacific  wtUement  convenUon  of  the  Hague  Conference,  may 

Ar.lTt,''^,?  T'^  •*"•  «^  °'  "••  recommendaUon 
Article  27  of  the  ConvenUon  of  1899  and     .  ,«-le  48  of  Uie  re 

Yiaed  ConvenUon  of  1907  deal  wiU,  Uuv    ,  ..  :.    Jhn,  Article 
«#  reads: 

The  dilatory  Powers  considi      t  .1     r  djiy.  M  a  scr.  ua 
dispute  Uireatens  to  break  o.u  N^ivcn  ,^o  oi  mor    of 
Uiem.  to  remind  these  latter   la      „   In......  ri  ^c.  .♦  ia 

open  to  them. 

It  will  be  observed  that  a  duty  is  •    re     ih. ,  cr-  »•♦  d  or  rec- 
ognized.  and  eiUier  view  is  sufficient  lor  p.rsmt  pn-  ■■.  ,, ,. 

ConsequenUy.  Uiey  declare  Uiat  the  .a.i  of  reminding 
the  conflicUng  parties  of  Uie  provisions  of  Uie  present 
ConvenUon.  and  tfie  advice  given  to  them,  in  the  highest 
interests  of  peace,  to  have  recourse  to  the  Permanent 
Court,  can  only  be  regarded  as  friendly  actions. 

The  objection  to  this  article  is  Uiat  it  leaves  Uie  Powera 
free  to  take  or  not  to  take  acUon.  alttiough  it  is  stated  to  be 
a  duty  to  do  so.  It  can  not  be  too  often  said  Uiat  everybody's 
business  is  nobody's  concern,  and  to  give  effect  to  Uie  pro- 
vision some  person  or  body  should  be  appointed  whose  duty 
It  IS  to  comply  wiUi  Uie  recommendaUon  of  ttie  article.  This 
defect  was  obvious  to  Uie  delegates  of  Uie  Second  Conference, 
who  apparently  sought  to  remedy  it  by  Uie  following  addition 
to  the  text  of  Article  27.  which  as  amended  became  Article  48 
of  the  revised  Convention: 

In  case  of  dispute  between  two  Powers,  one  of  them  can 
always  address  to  the  International  Bureau  a  note  con- 


»l 

I 

i, 

h 


taining  a  declaration  that  it  would  be  ready  to  submit  the 
dispute  to  aii)itratioD. 

The  Bureau  must  at  once  inform  the  other  Power  of  the 
declaration. 


i^ 


The  amendment  is  limited  to  the  parties  in  dispute.  The 
signatory  Powers  appear  to  be  overlooked,  and  yet  the  duty 
was  created  or  recognized  by  the  article  as  thp  duty  of  the 
signatory  or  contracting  Powers  to  remind  the  disputants  that 
the  Permanent  Court  is  open  to  them,  and  the  amendment 
merely  permits  the  Powers  in  dispute  to  avail  themselves 
of  the  International  Bureau  to  transmit  a  proposal  of  arbitra- 
tion. Something  more  is  needed  and  yet  the  amendment 
serves  as  a  precedent.  The  article  itself  refers  to  the  pro- 
visions of  the  convention,  and  expressly  states  that  reminding 
the  parties  in  dispute  of  the  provisions  of  the  convention  is 
not  to  be  regarded  as  an  unfriendly  act.  Following  the  prece- 
dent created  by  the  amendment  and  enlarging  its  scope,  it 
would  seem  to  be  a  proper  and  friendly  act  on  the  part  of  the 
signatory  or  contracting  Powers  to  call  the  attention  of  the 
Powers  generally,  not  merely  those  in  dispute,  to  all  the  pro- 
visions of  the  convention  and  indeed  to  the  terms  of  all  the 
Conventions  and  Declarations  of  the  Hague  Conferences,  and 
to  invest  somebody  with  the  duty  of  acting  in  behalf  of  the  sig- 
natory or  contracting  Powers  in  the  performance  of  what  is 
considered  to  be  a  duty.  It  is  a  detail,  although  a  very  impor- 
tant one,  whether  the  diplomats  accredited  to  The  Hague,  a 
special  committee  thereof,  or  a  committee  appointed  by  the 
Conference  itself,  or  the  International  Bureau,  should  be  used 
for  this  purpose.  The  acceptance  of  the  principle  carries  witli 
it  the  creation  of  apt  agencies,  and  the  wisdom  of  the  nations 
may  be  trusted  to  devise  the  means  if  they  agree  upon  the 
need. 

It  may  well  be  that  the  preparatory  committee  mentioned 


87 

by  the  recommendaUon  for  a  Third  Conference,  "charged  by 
the  governments  with  the  task  of  coUecting  the  various  pro- 
posals to  be  submitted  to  the  Conference,  of  ascertaining  what 
subjects  are  ripe  for  embodiment  in  an  international  regula- 
Uon,"  will  develop  into  a  standing  committee  entrusted  with 
international  interests  between  tiie  various  Conferences     Es- 
peciaUy  would  Uiis  be  so  if  tiie  committee  were  appointed  by 
tiie  Conference,  instead  of  being  selected  by  agreement  of  Uie 
Powers  some  time  before  Uie  caUing  of  flie  future  Conference 
It  would  not  be  an  executive;  it  would  not  be  a  government;  it 
would,  however,  as  a  committee,  represent  international  inter- 
este  during  the  periods  between  Uie  Conferences. 

V.  An  understanding  upon  certain  fundamental  principles 
of  international  law.  as  set  forth  in  the  Declaration  of  the 
Rights  and  Duties  of  Nations  adopted  by  the  American  Insti- 
tute of  International  Law  on  January  6. 1916.  which  are  them- 
selves  based  upon  decisions  of  English  courts  and  of  the 
Supreme  Court  of  the  United  States. 

1.  Every  nation  has  the  right  to  exist  and  to  protect  and 
to  conserve  its  existence;  but  this  right  neitiier  implies 
the  right  nor  justifies  the  act  of  the  State  to  protect  itself 
or  to  conserve  its  existence  by  the  commission  of  unlawful 
acts  against  innocent  and  unoflFending  States.  (Chinese 
Exclusion  Case.  130  U.  S..  581.  606;  Regina  vs.  Dudley,  15 
Cox  8  Criminal  Cases,  p.  624,  14  Queen's  Bench  Division. 

2.  Ever}'  nation  has  the  right  to  independence  in  the 
sense  that,  it  has  a  right  to  ttie  pursuit  of  happiness  and  is 
free  t^  develop  itself  without  interference  or  control  from 
oUier  States,  provided  that  in  so  doing  it  does  not  inter- 
fere with  or  violate  the  rights  of  oUier  States. 

3.  Every  nation  is  in  law  and  before  law  Uie  equal  of 
every  other  nation  belonging  to  the  society  of  nations,  and 
all  nations  have  the  right  to  claim  and,  according  to  the 


*f 


Declaration  of  Independence  of  the  United  States,  "to  as- 
sume, among  the  Powers  of  the  earth,  the  separate  and 
equal  station  to  which  the  laws  of  nature  and  of  nature's 
God  entitle  them."  {Le  Louis,  2  Oodson,  210,  243-4;  The 
Antelope.  10  Wheaton,  66,  122.) 

4.  Every  nation  has  the  ri^t  to  territory  witiiin  de- 
fined boundaries  and  to  exercise  exclusive  jurisdiction 
over  its  territory,  and  all  persons,  wheUier  native  or  for- 
eign, found  tiierein.  (The  Exchange.  7  Cranch.  116, 
136-7.) 

5.  Every  nation  entiUed  to  a  right  by  the  law  of  na- 
tions is  entiUed  to  have  that  ri^t  respected  and  protected 
by  all  other  nations,  for  right  and  duty  are  correlative, 
and  the  ri^t  of  one  is  the  duty  of  all  to  observe.  (United 
States  M.  Arjona,  120  U.  S.,  479,  487.) 

6.  International  law  is  at  one  and  the  same  time  both 
national  and  international :  national  in  the  sense  that  it  is 
the  law  of  the  land  and  applicable  as  such  to  the  decision 
of  all  questions  involving  its  principles;  international  in 
the  sense  that  it  is  the  law  of  the  society  of  nations,  and 
applicable  as  such  to  all  questiow  between  and  among 
the  members  of  the  society  of  nations  involving  its  prin- 
ciples. (Barbuit's  case.  Cases  tempore  Talbot,  p.  281; 
Triquet  vs.  Batii,  3  Burrow.  1478;  Heatiifield  os.  Chilton, 
4  Burrow,  2015;  The  Paquete  Habana,  175  U.  S.,  677,  700.) 

VI.  The  creation  of  a  permanent  international  council  of 
conciliation  to  consider,  to  discuss,  and  to  report  upon  such 
questions  of  a  non-jasticiahle  character  as  may  he  submitted 
to  such  council  by  an  agreement  of  the  Pou*ers  for  this  pur- 
pose. 

The  prototype  of  this  council  is  the  International  Commis- 
sion of  Inquiry  proposed  by  the  First  Hague  Conference,  and 
contained  in  its  Convention  for  the  Pacific  Settiement  of  In- 
ternational Disputes.  Its  form  may  well  be  Uiat  adopted  by 
Mr.  Bryan  in  the  various  treaties  for  the  advancement  of 
peace  which,  as  Secretary  of  State,  he  conchuled  on  behalf  of 


69 

the  U«ited  States  with  some  thirty  foreign  nations.  In  these  it 
«  provided  that  all  disputes  which  diplomacy  has  failed  to 

rl  r  7-  u  ^^""^  °°*  *•"'"  "''J"**"**  ^y  ^'^""g  treaties  of 
arbitraUon.  shall  be  laid  before  a  pennanent  commission  of 
some  five  members,  which  shall  have  a  year  within  which  to 
report  Its  conclusions  and  during  which  time  the  contracting 
parties  agree  not  to  resort  to  anns. 

The  Powers  might  agree  to  establish  an  international  com- 
mission as  It  IS  proposed  to  establish  an  international  court,  to 
be  composed  of  a  limited  number  of  members  appointed  for  a 
penod  of  years,  to  which  perhaps  a  representative  of  each  of 
the  countries  in  controversy  might  be  added,  in  order  that  the 
views  of  tiie  respective  governments  should  be  made  known 
and  be  carefully  considered  by  those  members  of  Uie  com- 
mission strangers  to  the  dispute.    In  this  case  U.ere  would  be 
a  pemanent  nucleus,  and  tue  Powers  at  odds  would  not  be 
Ob  iged  to  agree  upon  Uie  members  of  die  commission,  but 
only  to  appomt,  each  for  itself,  a  national  member.    In  Uii. 
way  tiie  dispute  could  be  submitted  to  the  commission  before 
It  had  become  acute  and  had  embittered  Uie  relations  of  the 
countries  m  question. 

If  an  international  commission  of  the  kind  specified  should 
be  considered  too  great  a  step  to  be  taken  at  once,  the  coun- 
tees  mi^t  conclude  agreements  modeled  upon  those  of  Mr 
Bi^an.  and  as  the  result  of  experience  take  such  action  in  the 
fuhire  as  should  seem  possible  and  expedient 

The  conclusions  of  the  commission  are  in  the  nature  of  a 
recommendation  to  the  Powers  in  conta.>versy.  which  thev  are 
free  eiUier  to  accept  or  to  reject  They  are  not  in  themselves 
an  adjustment  as  in  tiie  case  of  diplomacy,  an  award  as  in  the 
case  of  arbitration,  or  a  judgment  as  in  the  case  of  a  court 
of  justice.  It  is  the  hope  of  the  partisans  of  this  institution 
that  its  conclusion,  will  nevertheless  form  the  basis  of  setti.- 


w' 


I 


:^'        v.- 


si 


70 

ment  and  that,  under  the  pressure  of  enUghtened  public 
opinion,  the  Powers  may  be  minded  to  settle  their  differences 
more  or  less  in  accord  with  the  reconmiendations  of  the  com- 
mission. 

VII.  The  employment  of  good  offices,  mediation,  and 
friendly  composition  for  the  settlement  of  disputes  of  a  non- 
justiciable nature. 

Good  offices  and  mediation  were  raised  to  the  dignity  of  an 
international  institution  by  the  First  Hague  Peace  Conference, 
and  in  its  Peaceful  SetUement  Convention  the  signatory  or 
contavcting  Powers  agreed  to  have  '"recourse,  as  far  as  cir- 
cumstances aUow,  to  the  good  offices  or  mediation  of  one  or 
more  friendly  Powers,"  and  it  is  specificaUy  stated  in  the  Con- 
vention, iu  order  to  remove  doubt  or  uncertainty,  that  the  offer 
of  good  offices  or  of  mediation  is  not  to  be  considered  as  an 
unfriendly  act-and  the  Powers  might  also  have  added  that 
It  18  not  an  act  of  intervention,  which  nations  resent. 

The  offer  of  good  offices  is  a  word  of  advice,  it  is  not  an 
award  or  a  decision.  Mediation  goes  a  step  further,  as  the  na- 
tion proposing  it  offers  to  cooperate  with  the  parties  in  effect- 
ing a  settlement.  The  agreement  to  ask  and  to  offer  good 
offices  and  mediation  is  qualified  by  th>  expression  "as  far  as 
arcumstances  will  allow."  It  is  therefore  highly  desirable 
that  frequent  resort  be  made  to  good  offices  and  mediation, 
in  order  that  the  nations  may  learn  from  experience  that  cir- 
cumstances allow  the  offer  and  the  acceptance  of  good  offices 
and  mediation  without  danger  to  either  and  witti  satisfaction 
to  both. 

Friendly  composition  is  more  than  good  offices  or  media- 
tion, and  may  be  less  than  arbib^tion.  It  is  not  limited  to  ad- 
vice, and  it  is  not  reshicted  to  cooperation;  it  is  the  settlement 
of  a  difference  not  necessarily  upon  the  basis  of  law,  but 


"i'^'W 


71 

rather  according  to  the  judgment  of  a  high-minded  and  con- 
scienUous  person  possessing  in  advance  the  confidence  of  both 
parties  to  the  dispute  and  deserving  it  by  his  adjustment  of  the 
dispute. 

It  may  be  a  setUement  in  the  nature  of  a  compromise; 
It  may  be  an  adjustment  according  to  the  principles  of  fair 
deahng;  it  may  be  a  bargain  according  to  the  principles  of 
give  and  take.  This  remedy  has  been  found  useful  in  the  past, 
and  it  can  be  of  service  in  the  future,  where  it  is  more  to  the 
advantage  of  naUons  to  have  a  dispute  adjusted  than  to  have 
it  determined  in  any  particular  way. 

VIII.  The  principle  of  arbitration  in  the  settlement  of  dis- 
putes of  a  non-justiciable  nature:  also  of  disputes  of  a  justici- 
able nature  which  should  be  decided  by  a  court  of  justice,  bat 
which  have,  through  delay  or  mismanagement,  assumed  such 
political  importance  that  the  nations  prefer  to  submit  them  to 
arbiters  of  their  own  choice  rather  than  to  judges  of  a  perma- 
nent judicial  tribunal. 

The  arbiter  is  not,  as  is  the  friendly  composer,  a  free  agent 
m  the  sense  that  he  may  raider  an  award  in  accordance  with 
his  individual  sense  of  right  or  wrong,  for,  as  the  First  Hague 
Peace  Conference  said  in  its  Pacific  Settlement  Convention, 
"mtemational  ariiitration  has  for  its  object  the  settlement  of 
differences  between  States  i,y  judges  of  their  own  choice,  and 
on  the  basis  of  respect  for  law."  Even  if  law  is  not  absolutely 
binding  It  can  not  be  arbitrarily  rejected;  it  must  be  respected 
and  the  sentence,  if  it  be  not  just  in  the  sense  that  it  is  based 
upon  law.  it  must  be  eqoitable  in  the  sense  that  it  is  based 
upon  the  spirit  of  the  law  as  distinct  from  the  letter. 

Hundreds  of  disputes  have  been  settled  since  the  Jay  Treaty 
of  1794  between  Great  Britain  and  the  United  States,  which 
brought  again  this  method  into  repute  and  into  the  practice  of 
nations.    As  a  result  of  this  large  experience,  extending  over 


72 


If) 


hi 


a  century,  nations  find  it  difficult  to  refuse  arbitration  when 
it  has  been  proposed.  But  if  it  is  a  sure,  it  is  a  slow-footed, 
remedy,  as  in  the  absence  of  a  treaty  of  aii)itration  one  must 
be  concluded,  and,  in  the  practice  of  the  United  States,  there 
must  be  a  special  agreement  submitted  to  and  advised  and 
consented  to  by  the  Senate,  stating  the  exact  nature  and  scope 
of  the  arbitration.  The  arbiters  forming  the  temporary  tribu- 
nal must  likewise  be  chosen  by  the  parties,  and  unfortunately 
at  a  time  when  they  are  least  inclined  to  do  so.  It  is  a  great 
and  a  beneficent  remedy,  but  the  difficulty  of  setting  it  in  mo- 
tion and  the  doubt  that  the  award  may  be  controlled  by  law 
suggest  the  creation  of  a  permanent  tribunal  which  does  not 
need  to  be  composed  for  the  settlement  of  the  case  and  in 
which  law  shall,  as  in  a  court  of  justice,  control  the  decision. 
There  are  many  cases  turning  on  a  point  of  law  and  which 
could  be  got  out  of  the  way,  to  the  great  benefit  of  the  cause  of 
international  f  ace,  if  they  were  submitted,  when  and  as  they 
arose,  to  a  jit  cial  tribunal.  Unfortunately,  such  a  tribunal 
a  times  past,  and  many  a  dispute,  by  delay  or 
has  assumed  a  political  importance  which 
■is  at  the  beginning.  Nations  may  have  taken 
it,  and  in  consequence  be  unwilling  to  change 
Again,  there  are  matters,  largely  if  not  wholly 
iiich  the  political  element  dominates,  which 
refer  >  submit  to  a  limited  commission  or 
P'  rsons  in  whose  ability  and  character 
€  and  whose  training  seems  to  fit  them  for 


has  not  exist 
niismanai""- 
it  did  no     ^^ 
a  positior  i^. 
their  atti  ade. 
politic  i,  or  in 
natio  18  woul( 
tribui!      compos  >d  o*^ 
they  have  confid 


the  disposition  of  the  controversy  in  hand 

The  reasons  for  a  resort  to  arbitration,  even  although  an  In- 
ternational Court  of  Justice  be  established  and  ready  to  re- 
ceive and  to  decide  the  case,  have  never  been  better  stated 
than  by  Mr.  Lton  Bourgeois  in  the  following  passage  taken 
from  an  address  advocai'ng  the  retention  of  the  so-called  Per- 


73 

manent  Court  of  Arbitration  and  of  creating  alongside  of  it  a 
permanent  court  composed  of  professional  judges,  which  was 
proposed  at  ttie  Second  Hague  Conference  of  1907  and  adopted 
in  principle: 

If  there  are  not  at  present  judges  at  The  Hague,  it  is  be- 
cause the  Conference  of  1899.  taking  into  consideration 
Uie  whole  field  open  to  arbitration,  intended  to  leave  to 
the  parties  the  duty  of  choosing  Uieir  judges,  which  choice 
IS  essential  in  all  cases  of  peculiar  gravity.  We  should 
not  like  to  see  Uie  court  created  in  1899  lose  its  essentially 
arbitral  character,  and  we  intend  to  preserve  this  freedom 
in  tile  choice  of  judges  in  all  cases  where  no  oUier  rule  is 
provided. 

In  controversies  of  a  political  nature  especially,  we 
ttiink  tiiat  fliis  will  always  be  the  real  rule  of  aii)itration. 
and  that  no  nation,  lai^e  or  small,  will  consent  to  go  be- 
fore a  court  of  aii>itration  unless  it  takes  an  active  part 
in  the  appointment  of  the  members  composing  it. 

But  is  the  case  the  same  in  questions  of  a  purely  legal 
nature?  Can  the  same  uneasiness  and  distrust  appear 
here?  .  .  .  And  does  not  every  one  realize  that  a  real 
court  composed  of  real  jurists  may  be  considered  as  Uie 
most  competent  organ  for  deciding  controversies  of  this 
character  and  for  rendering  decisions  on  pure  questions 
of  law? 

In  our  opinion,  therefore,  either  the  old  system  of  1899 
or  the  new  system  of  a  truly  permanent  court  may  be  per- 
ferred,  according  to  the  nature  of  the  case.  At  all  events 
there  is  no  intention  whatever  of  making  the  new  system 
compulsory.  The  choice  between  the  tribunal  of  1899  and 
the  court  of  1907  will  be  optional,  and  the  experience  will 
show  the  advantages  or  disadvantages  of  the  two  systems. 

!X.  The  negotiation  of  a  convention  creating  a  judicial 
union  of  the  nationa  along  the  lines  of  the  Universal  Postal 
Union  of  1906.  to  which  all  civilized  nations  and  self-govern- 
ing dominions  are  parties,  pledging  the  good  faith  of  the  con- 


111 


74 


tracting  partiea  to  submit  their  Jiuticiable  dispute*— that  is  to 
•ay,  their  differencei  involving  law  or  equity— to  a  permanent 
court  of  this  union,  whose  decisions  will  bind  not  only  the 
litigating  nations,  but  also  all  parties  to  its  creation. 

In  the  Universal  Postal  Union,  which  has  been  mentioned  as 
the  prototype  of  a  judicial  union,  all  the  civilized  nations  of 
the  world  and  self-governing  dominions  have  bound  them- 
selves to  submit  to  aribitration  their  disputes  concerning  the 
interpretation  of  the  Convention  as  well  as  their  disputes 
arising  under  it,  by  a  commission  of  three  aii>iters,  of  whom 
one  is  to  be  appointed  by  each  of  the  disputants  and  the  third 
in  case  of  need  by  the  aititers  themselves.  What  the  nations 
have  agreed  to  do  after  they  can  do  before  the  outbreak  of  a 
dispute,  for  the  appointment  in  this  case  is  a  matter  of  time, 
not  of  principle. 

The  American  Institute  of  International  Law  calls  especial 
attention  to  the  fact  that  sovereignty  is  not  necessarily  in- 
volved in  the  formation  of  a  judicial  union,  in  the  appoint- 
ment of  the  judges,  or  in  the  operation  of  the  judicial  tribunal, 
because  in  the  Universal  Postal  Union  self-governing  do- 
minions are  parties,  which  could  not  be  the  case  if  sovereignty 
were  requisite,  as  they  are  not  sovereign. 

Should  they  create  a  judicial  union,  and  at  the  time  of  its 
formation  install  a  permanent  tribunal  composed  of  a  limited 
number  of  judges,  the  Society  of  Nations  would  find  itself  pos- 
sessed of  a  court  of  justice  composed  in  advance  of  the  dis- 
putes, ready  to  assume  jurisdiction  of  them  whenever  they 
should  arise,  without  the  necessity  of  creating  the  court,  ap- 
pointing its  members,  agreeing  upon  the  question  to  be  liti- 
gated, and  in  many,  if  not  in  most,  instances  upon  the  proce- 
dure to  be  followed. 

The  prototype  of  this  international  court  of  justice  and  its 
procedure  is  the  Supreme  Court  of  the  United  States  and  its 
procedure,  which  may  be  thus  briefly  outlined : 


1.  The  Supreme  Court  determine*  for  itself  the  que8ti<Hi  of 
Jurisdiction,  receiving  the  case  if  it  finds  that  States  are  par- 
ties and  if,  as  presented,  it  involves  questions  of  law  or  of 
equity.  (Rhode  Island  u».  Massachusetts,  1  ters,  657,  de- 
cided by  Hr.  Justice  Baldwin.) 

2.  If  States  are  parties  to  the  suit,  and  if  it  is  juifticiable,  that 
is,  if  it  involves  law  or  equity,  the  plalntifT  State  is,  upon  its 
request,  entitled  to  have  a  subpcena  against  the  defendant 
State  issued  by  the  Supreme  Court  (New  Jersey  o$.  New 
York.  3  Peters,  461,  decided  by  Mr.  Chief  Justice  Marshall; 
New  Jersey  vs.  New  York,  5  Peters,  284,  decided  by  Mr.  Chief 
Justice  Marshall.) 

3.  The  plaintiff  State  has  the  right  to  proceed  ex  parte  if  the 
defeadant  State  does  not  appear  and  litigate  the  case.  (New 
Jersey  v».  New  York,  5  Peters,  284,  decided  by  Mr.  Chief  Jus- 
tice Marshall;  Massachusetts  o».  Rhode  Island,  12  Peters,  755, 
decided  by  Mr.  Justice  Thompson.) 

4.  The  plaintiff  State  has  the  right,  in  the  absence  of  the  de- 
fendant duly  summoned  and  against  which  a  subpoena  has 
been  issued,  to  proceed  to  judgment  against  the  defendant 
State  in  a  suit  which  the  Supreme  Court  has  held  to  be  be- 
tween States  and  to  be  of  a  justiciable  nature.  (New  Jersey 
v».  New  York,  5  Peters,  284,  decided  by  Mr.  Chief  Justice  Mar- 
shall.) 

5.  In  the  exercise  of  its  jurisdiction  the  Supreme  Court  does 
not  compel  the  presence  of  the  defendant  State  (Massachu- 
setts vs.  Rhode  Island,  12  Peters,  755,  decided  by  Mr.  Justice 
Thompson),  nor  does  it  execute  by  force  its  judgment  against 
a  defendant  State  (Kentucky  vs.  Dennison,  24  Howard,  66,  de- 
cided by  Mr.  Chief  Justice  Taney). 

T)ie  reasonableness  of  the  judgment  and  the  advantage  of 
judicial  settlement  have  thus  created  a  public  opinion  as  the 
sanction  of  the  Supreme  Court  in  suits  between  States. 


^t|- 


n 

6.  In  Ihf  exercise  of  its  Jurisdiction  the  Supreme  Court  hu 
moulded  a  system  based  upon  equity  procedure  between  indi- 
viduaU  iu  such  a  way  as  to  simplify  It,  giving  to  the  defendant 
SUle  oiiportunity  to  present  its  defense  as  well  as  to  the  plain- 
tiff Slate  to  present  iU  case  without  delaying  or  blocking  the 
course  of  jusUce  by  technical  objecUons.  (Rhode  Island  vs. 
Massachusetts,  14  Peters,  210.  decided  by  Mr.  Chief  Justice 
Taney.) 

As  in  the  case  of  the  Supreme  Court,  which  has  been  sug- 
gested  as  the  prototype  of  an  international  tribunal,  there 
would  be  no  need  of  a  treaty  of  arbitration  or  of  a  special 
agreement  in  addition  to  Uie  Convention  creating  Uie  court 
and  authorizing  it  to  receive  and  decide  justiciable  disputes 
submitted  by  the  conti^cting  parties.  The  plaintiff  State  could 
set  tiie  court  in  motion  upon  its  own  Initiative,  witiiout  calling 
to  its  aid  Uie  members  of  Uie  Union,  just  as  each  member  of 
tiie  American  Union  can  file  Its  bill  in  Uie  Supreme  Court 
wiUiout  Uie  aid,  and  indeed  wlUiout  Uie  knowledge,  of  Uie 
oUier  States  of  the  American  judicial  union. 

The  employment  of  physical  force  eitiier  to  hale  a  nation 
into  court  or  to  execute  against  It  the  judgment  of  Uie  inter- 
national tribunal  has  not  been  mentioned.  The  sheriff  did  not 
antedate  Uie  judge,  nor  did  he  come  into  being  at  the  same 
time.  He  is  a  later  creation,  if  not  an  afterUiought.  He  is 
necessary  in  disputes  between  individuals;  he  is  not  necea- 
sary-at  least,  he  is  not  a  part  of  Uie  machinery  of  the  Su- 
preme Court  In  Uie  trial  of  disputes  between  States  of  Uie 
AmericaD  judicial  union  and  in  the  execution  of  Its  judg- 
ments against  States.  It  may  be  that  an  international  sheriff 
may  prove  to  be  necessary,  but  nations  shy  at  physical  force 
especially  if  Uiey  understand  Uiat  It  Is  to  be  used  against  Uiem' 
The  presence  of  the  sheriff  armed  wiUi  force,  ttiat  Is  to  say. 
of  an  International  police,  would  make  an  agreement  upon  an 
mtomational   court   more   difficult   and   If  an   international 


77 


theriff  tbould  prove  to  be  uuneceuary  his  requirement  at  a 
prerequisite  to  the  court  wouid  delay  the  constitution  of  this 
much-needed  institution. 

If  the  sheriff  is  needed,  or  if  some  form  of  compulsion  is 
found  advisable  in  order  to  procure  tlie  presence  of  the  de- 
fendant State  before  the  international  tribunal,  and  to  execute 
the  Judgment  thereof  when  rendered,  it  is  the  part  of  wisdom 
to  allow  tne  experience  of  nations  to  determine  when  and 
how  the  force  shall  be  created  and  under  what  circumstances 
and  conditions  it  is  to  be  applied.  We  should  not  unduly  com- 
plicate a  problem  already  sufiBdently  complex  by  insisting 
that  the  international  court  shall  be,  in  its  beginning,  more 
perfect  than  is  the  Supreme  Court  of  the  United  States  after 
a  century  and  more  of  successful  operation. 

X.  The  creation  of  an  enlightened  public  opinion  in  behalf 
of  peaceable  settlement  in  general,  and  in  particular  in  behalf 
of  the  foregoing  nine  propositiona,  in  order  that,  if  agreed  to, 
they  may  be  put  into  practice  and  become  effective,  in  reaponae 
to  the  appeal  to  that  greateat  of  aanctiona,  "a  decent  reaped  to 
the  opiniona  of  mankind." 

If  for  physical  force  we  would  substitute  justice,  we  must 
create  a  public  opinion  in  favor  of  jusUce,  as  we  must  create 
a  public  opinion  in  behalf  of  any  and  every  reform  which  we 
hope  to  see  triumph.  The  more  difficult  the  problem,  the 
greater  the  need  that  we  set  about  it  and  the  sooner  we  begin 
the  better  it  will  be  for  the  cause  which  we  champion.  There 
are  many  who  advocate  short-cuts  to  international  justice, 
and  therefore  to  international  peace,  just  as  there  are  many 
who  advocate  short-cuU  to  knowledge:  but  the  pithy  reply  of 
Euclid  to  his  royal  but  backward  pupil  is  as  true  today  as  it 
was  when  uttered  centuries  ago.  that  there  is  no  royal  road 
to  learning.  To  change  the  standard  of  conduct,  and  as  a  pre- 
liminary to  this  to  change  the  standard  of  thought,  is  indeed  a 


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(ANS(  ond  ISO  TEST  CHART  No    2) 


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P,A  Rochester.   N«»   York  14609       USA 

'^S  (716)   *82  -  0300  -  Phone 

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78 


1 


di£Bcult  task;  but  if  mankind  is  to  prefer  the  test  of  justice  to 
tlie  test  of  force,  we  must  educate  mankind  to  a  belief  in  jus- 
tice.   If  we  succeed,  justice  will  prevail  between  nations  as 
between  men;  if  we  fail,  justice  may  partially  prevail  between 
men,  as  it  largely  does  today,  but  not  between  and  among  the 
nations.    The  problem  before  us  is  therefore  one  of  education 
from  a  false  to  a  true  and  an  ennobling  standard.    If  public 
opinion  can  be  educated  in  one  country,  it  can  be  educated  in 
other  countries,  and  we  can  confidently  look  forward  to  a 
public  opinion  in  all  countries — universal,  international,  and 
as  insistent  as  it  is  universal  and  international.  A  mere  statute, 
we  know  by  a  sad  experience,  will  not  make  men  virtuous, 
and  a  mere  treaty — for  a  treaty  is  an  international  statute — 
will  not  make  the  nations  virtuous.    We  have  failed  in  the 
one,  and  we  are  doomed  to  failure  in  the  other  aMempt,  for 
nations,  composed  of  these  very  men  and  women,  are  not  to 
be  reformed  by  statute  any  more  than  the  men  and  women 
composing  them.     Without  public  opinion  the  statute— na- 
tional or  international — is  a  dead  letter;  with  public  opinion 
the  statute — national  or  international — is  a  living  force.  With 
public  opinion  all  things  are  possible;  without  public  opinion 
we  may  hope  to  do  nothing.    Were  Archimedes  living  today, 
and  if  he  were  speaking  of  things  international,  he  would 
declare  public  opinion  the  lever  that  moves  the  world. 

In  speaking  of  public  opinion,  Mr.  Root  has  recently  and  im- 
pressively said: 


There  is  but  one  power  on  earth  that  can  preserve  the 
law  for  the  protection  of  the  poor,  the  weak,  and  the  hum- 
ble; there  is  but  one  power  on  earth  that  can  preserve  the 
law  for  the  maintenance  of  civilization  and  humanity, 
and  that  is  the  power,  the  mighty  power,  of  the  public 
opinion  of  mankind. 

Without  it  your  leagues  to  enforce  peace,  your  societies 
for  a  world's  court,  your  peace  conventions,  your  peace 


79 


endowments  are  all  powerless,  because  no  force  moves 
in  this  world  until  it  ultimately  has  a  public  opinion  be- 
hind it 

The  thing  that  men  fear  more  than  they  do  the  sheriff 
or  the  policeman  or  the  State's  prison  is  the  condemnation 
of  the  community  in  which  they  live. 

The  thing  that  among  nations  is  the  most  potent  force 
is  the  universal  condemnation  of  mankind.  And  even 
during  this  terrible  struggle  we  have  seen  the  nations  ap- 
pealing from  day  to  day,  appealing  by  speech  and  by  pen 
and  by  press,  for  the  favorable  judgment  of  mankind,  the 
public  opinion  of  the  world.  That  establishes  standards 
of  conduct 


.;! 


May  we  not  on  the  eve  of  an  International  Conference, 
say  with  Washington  on  the  eve  of  the  International  Con- 
ference of  1787:  "Let  us  raise  a  standard  to  which  the  wise 
and  the  honest  can  repair.    The  event  is  in  the  hands  of  God." 

James  Brown  Scott. 


i 


Appendix 

CONSTITUTION    OF    THE    AMERICAN    INSTITUTE    OF 
INTERNATIONAL  LAW 

Article  I.    Name 

An  association  is  founded  to  be  known  as  the  American 
Institute  of  International  Law. 


Article  II.    Object 

The  American  Institute  of  International  Lav/  is  an  unoffi- 
cial scientific  association. 
It  proposes: 

1.  To  give  precision  to  the  general  principles  of  interna- 
tional law  as  they  now  exist,  or  to  formulate  new  ones,  in 
conformity  with  the  solidarity  which  unites  the  members  of 
the  society  of  civilized  nations,  in  order  to  strengthen  these 
bonds  and,  especially,  the  bonds  between  the  American  peo- 
ples; 

2.  To  study  questions  of  international  law,  particularly 
questions  of  an  American  character,  and  to  endeavor  to  solve 
them,  either  in  conformity  with  generally  accepted  principles, 
or  by  extending  and  developing  them,  or  by  creating  new 
principles  adapted  to  the  special  needs  of  the  American  Con- 
tinent; 

3.  To  discover  a  method  of  codifying  the  general  or  special 
principles  of  international  law,  and  to  elaborate  projects  of 
codification  on  matters  which  lend  themselves  thereto; 

4.  To  aid  in  bringing  about  the  triumph  of  the  principles 
of  justice  and  of  humanity  which  should  govern  the  relations 
between  peoples,  considered  as  nations,  through  more  exten- 


n 

sive  instruction  in  international  law,  particularly  in  American 
universities,  through  lectures  and  addresses,  as  well  as 
through  publications  and  all  other  means; 

5.  To  organize  the  study  of  international  law  along  truly 
scientific  and  practical  lines  in  a  way  that  meets  the  needs  of 
modem  life,  and  taking  into  account  the  problems  of  our 
hemisphere  and  American  doctrines; 

6.  To  contribute,  within  the  limits  of  its  competence  and 
the  means  at  its  disposal,  toward  the  maintenance  of  peace, 
or  toward  the  observance  of  the  laws  of  war  and  the  mitiga- 
tion of  the  evils  thereof; 

7.  To  increase  the  sentiment  of  fraternity  among  the  Re- 
publics of  the  American  Continent,  so  as  to  strengthen  friend- 
ship and  mutual  confidence  among  the  citizens  of  the  coun- 
tries of  the  New  World. 

Article  III.    Membership 

The  American  Institute  of  international  Law  is  composed 
of  committees  or  delegates  of  the  national  societies  of  inter- 
national law  established  in  the  different  American  Republics, 
which  are  affiliated  therewith  and  of  which  it  is  the  permanent 
representative. 

It  comprises: 

1.  Charier  members; 

2.  Titular  members; 

3.  Ex  officio  members; 

4.  Corresponding  members. 

Lhe  charier  members  are  those  who  accepted  this  designa- 
tion by  signing,  in  1912,  the  draft  which  has  now  become  the 
present  Constitution. 

The  titular  members,  chosen  exclusively  from  among  the 
publicists  of  the  different  Republics  of  the  American  Conti- 


H 


"•nil 


82 

nent,  are  elected  by  the  Instiiute,  in  conformity  with  the  next 
article.  No  Republic  may  have  more  than  five  such  members 
at  one  and  the  same  time. 

If  the  secretary  general  of  the  national  society  of  inter- 
national law  in  any  one  of  the  American  Republics  is  not 
personally  a  member  of  the  Institute,  he  becomes  of  right  a 
member  ex  ofBcio,  that  is  to  say,  by  virtue  of  and  for  the 
term  of  his  office.  Ex  officio  members  have,  as  such,  the  same 
rights  as  titular  members. 

Jurists  of  non-American  nationality,  who,  through  their 
writings  or  their  activity,  shall  have  contributed  to  the  prog- 
ress of  international  law,  may  be  elected  corresponding 
members. 

Corresponding  members  are  invited  to  attend  all  the  ses- 
sions of  the  Institute,  with  the  same  rights  and  privileges  as 
American  members.  They  have  not,  however,  the  right  to 
vote  either  on  administrative  or  scientific  questions. 

They  are  called  upon  to  give  their  opinion  on  questions 
submitted  to  the  consideration  of  the  Institute,  and  they  are 
active  collaborator  liereof. 

Tliey  are  exempt  from  the  entrance  fee  and  annual  dues. 

No  one  State  can  have  more  than  three  such  members. 


Article  IV.  National  Societies 
The  national  societies  organized  in  each  American  Republic 
for  the  study  and  popularization  of  international  law,  whose 
members  are  jurists  versed  in  international  law,  may  affiliate 
with  the  American  Institute.  The  members  of  these  societies 
are  entitled  to  attend  the  sessions  of  the  Institute,  but  they 
may  not  take  part  in  its  deliberations  nor  may  they  vote. 

The  affiliated  national  societies  propose  duly  qualified  per- 
sons from  among  their  nationals,  for  election  as  titular  mem- 
bers by  the  Institute. 


as 

The  members  of  the  national  societies,  who  are  members  of 
the  Institute,  constitute,  in  their  country,  a  governing  com- 
mittee of  the  said  society,  which  committee  is  the  intellectual 
bond  between  the  national  society  and  the  Institute. 

The  conmiittee  communicates,  either  directly,  or  through 
the  secretary  general  of  the  national  society,  with  the  secre- 
tary general  of  the  Institute,  and  sends  him  all  the  trans- 
actions and  projects  of  the  said  society  or  informs  him  of  the 
progress  that  has  been  made  upon  them. 

The  secretary  general  of  the  Institute  trarsmiU  these  trans- 
actions and  projects  in  full,  in  part,  or  a  synopsis  thereof  to 
the  different  national  societies. 

Article  V.    Officers 

The  officers  of  the  Institute  are  an  honorary  president,  a 
president,  a  secretary  general,  and  a  treasurer. 

Before  the  close  of  each  session  there  is  an  election  of  an 
honorary  president  and  a  president,  who  remain  in  office  until 
the  election  of  their  successors  at  the  following  session. 

The  application  of  the  foregoing  second  paragraph  is  pro- 
visionally suspended  until  the  Institute  shall  have  decided 
otherwise. 

In  the  elections  individual  ballots  are  cast,  and  only  the 
members  present  are  permitted  to  vote.  Nevertheless,  absent 
members  are  allowed  to  send  their  votes  in  writing,  in  sealed 
envelopes.  Candidates  must  receive  a  majority  of  the  votes 
of  the  members  present,  as  well  as  a  majority  of  all  the  votes 
validly  cast,  in  order  to  be  elected. 

Article  VI.    Executive  Council 

An  Executive  Council  is  the  governing  body  of  the  Institute. 
It  meets  at  Washington,  the  seat  of  the  Institute. 


84 

It  it  composed  of  the  president,  the  secretary  general,  and 
the  treasurer,  who  are  members  ex  officio,  and  of  two  other 
members  elected  at  the  beginning  of  each  session.  They  are 
eligible  for  re-election. 

It  has  the  right  to  increase  its  membership  and  itself  elects 
additional  members,  if  it  deems  it  necessary. 

Article  VII.    Secretary  General 

The  secretary  general  is  elected  by  the  Institute  for  three 
sessions.    He  is  eligible  for  re-election. 

He  has  in  his  charge  the  drafting  of  the  minutes  of  each 
meeting,  all  the  publications  of  the  Institute,  its  routine  work, 
its  correspondence,  and  the  execution  of  its  decisions,  unless 
the  Institute  provides  otherwise.  He  is  keeper  of  its  seal  and 
of  its  archives.  At  the  beginning  of  each  session  he  presents 
a  summary  of  the  work  of  the  preceding  session. 

Article  VIII.    Assistant  Secretaries 

On  the  proposal  of  the  secretary  general,  the  Institute  may 
appoint  one  or  more  assistant  secretaries,  to  aid  him  in  the 
performance  of  his  duties  or  to  represent  him  in  his  absence. 


He  is  eligible 


Article  IX.    Treasurer 

The  treasurer  is  elected  for  three  sessions, 
for  re-election. 

He  has  in  his  charge  the  financial  affairs  of  the  Institute, 
under  the  control  of  the  Executive  Council.  He  presents  a 
detailed  report  at  each  session. 

Two  members  are  designated  at  the  first  meeting  as  audi- 
tors, and  present,  during  the  session,  a  report  on  the  result  of 
their  examination  of  the  treasurer's  accounts. 


85 

Article  X.    Reporten 

The  Executive  Council  submits  questions  for  examination 
and  study  to  tlie  aflUiated  national  societies,  or  appoints  re- 
porters from  among  its  members,  or  organizes  committees  for 
the  preparatory  study  of  questions  that  are  to  be  submitted  to 
the  deliberations  of  the  Institute. 

In  urgent  cases,  the  secretary  general  himself  prepares  the 
reports. 

Article  XI.    Se$$ions 

There  shall  be  at  least  one  session  of  the  Institute  every 
two  years;  but  the  Executive  Council  may,  during  this  inter- 
val, call  an  extra  session  of  the  Institute. 

At  each  session  the  Instifute  designates  the  place  and  the 
time  of  the  following  session.  It  may  leave  this  designation 
to  the  Executive  Council. 


Article  XII.    Languages 

French,  the  language  of  the  Inttitut  de  droit  international 
and  of  the  Peace  Conferences,  is  likewise  the  language  of  the 
Institute. 

Nevertheless  the  use  of  Spanish,  Portuguese,  and  English, 
as  national  languages,  is  permitted  as  of  ri^^t. 

Every  oflBcial  document  that  is  to  be  published  is  translated 
into  the  language  or  languages  selected  by  the  officers. 

Article  XIII.    Publication  of  Proceedings 

After  each  session,  the  Institute  publishes  an  account  of  its 
proceedings. 

Article  XIV.    Dues  and  Funds 

The  expenses  of  the  Institute  are  covered: 

1.  By  the  dues  of  its  members,  as  well  as  by  an  entrance  fee. 


The  dues  are,  unleH  the  hy-lawa  provide  to  the  contrary, 
an  entrance  fee  of  ten  dollars  and  annual  dues  of  five  dollars. 
The  dues  are  payable  from  and  including  the  year  of  election. 
They  entitle  the  member  to  all  the  publications  of  the  Insti- 
tute. An  unjustifiable  delay  of  more  than  three  years  in  the 
payment  of  dues  may  be  considered  as  equivalent  to  a  resig- 
nation. 

2.  By  foundations  and  other  gifts. 

It  is  proposed  that  a  fund  be  gradually  formed,  the  income 
from  which  shall  be  devoted  to  the  expenses  of  the  sessions, 
of  the  publications,  of  the  secretariat,  and  of  other  routine 
matters. 

AsncLe  XV.    Amendmenti 

The  present  constitution  may  be  revised  or  amended,  in 
whole  or  in  part,  at  a  regular  session,  on  the  request  of  a 
majority  of  the  members  present  and  voting. 


BY-LAWS   OF   THE   AMERICAN    INSTITUTE   OF 
INTERNATIONAL   LAW 

PART  I 

Members 

Article  I 

The  titular  members  of  the  Institute  are  elected  by  it  from 
the  list  of  names  presented  by  the  affiliated  national  society. 

Article  II 

Where  no  offiliated  national  society  exists  or  where  the 
existing  society  neglects  to  present  candidates,  the  Institute 
provides  for  nominations  or  vacancies  as  it  sees  fit 

Article  III 

Corresponding  members  are  elected  by  the  Institute  on  the 
proposal  of  the  Executive  Council,  at  the  meeting  devoted 
to  the  election  of  titular  members. 

PART  II 

Preliminary  Work  between  Se$sionM 

Article  IV 

By  article  X  of  the  Constitution  the  Executive  Council 
presents  the  questions  for  study,  either  by  laying  them  before 
the  national  societies,  or  by  designating  two  reporters,  or  one 
reporter  and  a  committee  of  study  for  each  question. 

In  the  former  case,  the  subject,  with  or  without  a  question- 
naire, is  submitted  to  each  national  society. 


n 


88 

If  two  reporten  are  appointed,  each  of  them  prepares  a 
memorandum*  after  which  one  of  them  or  a  third  reporter 
designated  by  the  Executive  Council  prepares  a  report  on  the 
basis  of  and  with  the  assistance  of  the  memoranda  presented. 

If  a  reporter  and  a  committee  of  study  are  designated,  the 
reporter  must  get  into  communication  with  the  members  of 
the  committee  before  the  31st  of  December  of  the  year  of  his 
appointment,  and  submit  his  ideas  to  them  and  lesm  their 
views. 

Every  member,  who  signifies  his  desire  to  that  effect,  has 
the  ri^.t  to  be  a  member  of  such  of  the  committees  of  study 
as  he  shall  indicate  to  the  secretary  general. 

AtTICLE  V 

The  national  societies  and  the  reporters  must  transmit  their 
studies  or  reports  to  the  secretary  general  in  ample  time  for 
their  publication  and  distribution  before  the  session  at  which 
they  are  to  be  discusser. 

The  secretary  general  does  not  provide  for  the  printing  or 
distribution  of  other  reports  or  documents  prepared  by  the 
reporters  or  by  members  of  committees  or  of  the  Institute. 
Such  works  are  published  only  in  exceptional  cases  and  by 
virtue  of  an  express  decision  on  the  part  of  the  Institute  or 
the  Executive  Council. 


PART  III 

Seuions 

Articx£  VI 

There  may  be  no  more  than  one  session  each  year.  The 
interval  between  two  sessions  must  not  exceed  two  years. 

At  each  session  the  Institute  designates  the  place  and  time 
of  the  next  session.   This  designation  may  be  left  to  the  Execu- 


Uve  Ck>unci]  (Conititutioii,  Article  XI).  In  this  case,  the  Mcn" 
tary  ^neral  infomu  the  national  •odetiee  aflUiated  with  the 
Institute,  at  least  four  months  in  advance,  of  the  place  and 
date  determined  ufion. 

Articlb  VII 

The  program  of  the  session  is  drawn  up  by  the  Executive 
Council,  and  the  secretary  general  brings  it  to  the  attention 
of  the  national  societies  as  soon  as  possible. 

The  program  must  be  accompanied  by  the  summary  of  the 
progress  made  on  the  preparatory  work,  as  well  as  by  all 
other  information  that  may  facilitate  the  labors  of  the  mem- 
bers taking  part  in  the  session. 

AnicLB  VIII 

Members  who  desire  to  propose  new  questions  for  study 
are  invited  to  lay  them  before  the  Executive  Council  at  the 
beginning  of  the  session.  This  invitation  must  be  extended 
by  the  president  at  the  opening  of  the  sessions. 

Artuxb  IX 

The  president,  after  consultation  with  the  Executive  Coun- 
cil and  the  reporters,  determines  the  order  in  which  the  sub- 
jects should  be  treated;  but  the  program  is  in  all  cases  under 
the  control  of  the  Assembly  itself. 

PART  rv 

Meetings 

Article  X 

The  meetings  are  devoted  to  scientific  work. 

The  titular  members  and  the  corresponding  members  take 


90 

part  in  fhf.ia.    The  former  have  the  right  to  vote;  the  latter 
have  the  right  merely  to  take  part  in  the  discussions. 

The  meetings  are  not  public.  The  Executive  Council  may, 
however,  permit  the  attendance  of  the  local  authorities  and 
press,  as  well  an  of  persons  who  request  to  be  admitted. 

Article  XI 

Unless  otherwise  resolved  by  a  special  decision  of  the  Exec- 
utive Council,  the  president  delivers  an  address  immediately 
after  the  opening  of  the  first  meeting. 

The  secretary  general  presents  a  summary  of  the  work  of 
the  last  session  and  malres  known  the  names  of  the  as;>istant 
secretaries  or  editors  whom  he  has  appointed  to  aid  him  in 
drawing  up  the  minutes  of  the  session. 

The  assistant  secretaries  or  editors  hold  oflBice  only  during 
the  session. 

Article  XII 

The  treasurer  is  then  requested  to  present  his  accounts  to 
the  Institute,  and  two  auditors  are  thereupon  elected  to  exam- 
ine the  accounts  of  the  treasurer.  The  auditors  present  their 
report  in  the  course  of  the  session  (Constitution,  Art.  IX). 

Article  XIII 

Each  meeting  is  opened  by  the  reading  of  the  minutes  of 
the  preceding  meeting. 

Separate  minutes  are  drawn  up  for  each  meeting,  even 
when  there  are  more  than  one  on  the  same  day;  but  the 
minutes  of  the  morning  meeting  are  read  only  at  the  opening 
of  the  next  day's  meeting. 

The  members  present  approve  or  revise  the  minutes.  Re- 
vision can  be  requested  only  in  the  matter  of  wording,  of 
errors,  or  of  omissions.  A  decision  can  not  be  changed  in  the 
minutes. 


The  minutes  of  the  last  meeting  of  a  session  are  approved 
by  the  president 

Abticxe  XIV 

If  the  Executive  Council  deems  it  advisable  to  consider  a 
matter  as  urgent,  it  may  propose  the  immediate  discussion 
thereof,  and,  if  the  majori-^  of  the  members  present  agree, 
the  matter  may  be  put  to  vote  in  the  course  of  this  session; 
otherwise  the  proposition  is  of  right  postponed  until  the  fol- 
lowing session. 

Article  XV 

Committees  may  be  appointed  during  a  meeting  for  the 
examination  of  certain  questions.  These  committees  may,  in 
turn,  appoint  sub-committees. 

Abticxe  XVI 

The  propositions  of  the  reporters  and  of  the  committees 
form  the  basis  of  the  deliberations  in  the  meetings. 

The  members  of  committees  have  the  right  to  complete  and 
develop  their  individual  opinions. 

Article  XVII 

The  discussion  is  then  opened.  It  takes  place  in  the  lan- 
guages indicated  in  Article  XII  of  the  Constitution. 

At  the  request  of  the  members,  the  discussion  may  be 
summed  up  in  French. 

Article  XVIII 

No  one  may  speak  without  having  been  previously  recog- 
nized by  the  president. 

The  latter  notes  the  names  of  the  members  who  request 
the  floor  and  recognizes  them  in  the  order  of  their  requests. 


92 

The  reporters,  however,  when  the  question  on  which  they 
have  made  a  report  is  under  discussion,  are  not  subject  to  the 
rule  of  speaking  in  turn.  The  same  is  true  of  the  president 
of  the  committee. 

Article  XIX 

The  reading  of  an  address  is  forbidden,  unless  specially 
authorized  by  the  president. 

Article  XX 

If  a  speaker  digresses  too  far  from  the  subject  under  con- 
sideration, the  president  calls  his  attention  to  tiie  fact  and 
requests  him  to  speak  to  the  question. 

Article  XXI 

All  propositions  and  all  amendments  are  submitted,  in  writ- 
ing, to  the  president. 

Article  XXII 

If  a  point  of  order  is  raised  during  a  deliberation,  the  dis- 
cussion of  the  main  question  is  suspended  until  the  assembly 
passes  upon  the  point  of  order. 


Article  XXIII 

The  closing  of  the  discussion  may  be  proposed.  The  dis- 
cussion may  not,  however,  be  declared  closed,  unless  a  two- 
thirds  majority  of  the  assembly  so  votes. 

If  no  one  demands  the  floor  or  if  it  has  been  resolved  to 
close  the  discussion,  the  president  declares  the  discussion 
closed.  Thereafter  no  one  may  be  given  the  floor,  except,  in 
special  cases,  the  reporter  or  the  president  of  the  committee. 


98 

Article  XXIV 

Before  proceeding  to  a  vote,  the  president  submits  to  the 
assembly  the  order  in  which  the  questions  will  be  voted  upon. 

If  there  are  objections  to  the  order,  the  assembly  passes 
upon  them  at  once. 

Article  XXV 

Amendments  to  amendments  are  put  to  vote  before  amend- 
ments, and  the  latter  before  the  main  question.  Proposals 
purely  and  simply  to  reject  the  question  are  not  considered 
amendments. 

Where  there  are  more  than  two  alternate  main  proposi- 
tions, they  are  all  put  to  vote,  one  after  the  other,  and  e^jry 
member  may  vote  for  one  of  them.  When  a  vote  has  thus 
been  taken  on  all  the  propositions,  if  none  of  them  has  ob- 
tained a  majority,  the  members  decide,  by  another  ballot, 
which  of  the  two  propositions  receiving  the  least  number  of 
votes  must  be  eliminated.  The  remaining  propositions  are 
then  voted  upon  in  the  same  manner  until  only  one  is  left, 
upon  which  a  definitive  vote  may  be  taken. 

Article  XXVI 

The  adoption  of  an  amendment  to  an  amendment  does  not 
bind  a  member  to  vote  for  the  amendment  itself;  neither  does 
the  adoption  of  an  amendment  obligate  a  member  to  vote  in 
favor  of  the  main  proposition. 

Article  XXVII 

When  a  proposition  is  capable  of  being  divided,  any  mem- 
ber may  request  a  vote  by  division. 


94 

Article  XXVIII 

When  the  proposition  under  consideration  is  drawn  up  in 
several  articles,  tiie  proposition  as  a  whole  is  first  subjected 
to  general  discussion. 

After  such  discussion  and  Uie  vote  on  its  articles,  tiie  propo- 
sition as  a  whole  is  put  to  vote.  Such  vote  may  be  postponed 
until  a  subsequent  meeting. 

Article  XXIX 

The  voting  is  done  by  raising  the  hand. 

No  one  is  bound  to  take  part  in  a  vote.  If  some  of  the 
members  present  abstain,  the  question  is  decided  by  the 
majority  of  those  voting. 

In  case  of  a  tie,  the  proposition  is  considered  defeated. 

Article  XXX 

The  vote  may  be  taken  by  roll-call,  if  five  members  so  re- 
quest. There  is  always  occasion  for  a  roll-call  on  a  scientific 
proposition  as  a  whole. 

The  minutes  mention  tiie  names  of  the  members  voting  for 
or  against  and  the  names  of  those  who  abstain. 

Article  XXXI 

The  Institute  may  decide  that  a  second  deUberation  should 
take  place,  either  in  the  course  of  the  session,  or  during  the 
following  session,  or  that  its  decisions  be  referred  to  a  draft- 
ing coDMnit*'"  to  be  designated  by  itself  or  by  the  Executive 
Council. 


OFFICERS  AND  MEMBERS  OF  THE  AMERICAN 
INSTITUTE  OF  INTERNATIONAL  LAW 

Officebs 

EuHU  Root,  Honorary  President 
James  Brown  Scott,  President 
Alejandro  Alvarez,  Secretary  General 
Luis  Anderson,  Treasurer 


EbCECUTIVE  COCMCIL 

EuHC  Root 

James  Brown  Scott 

Alejandro  Alvarez 

Luis  Anderson 

Antonio  Sanchez  de  Bustamantb 

Joaquin  D.  Casasus*  < 


Permanent  Committee  for  the  Study  of  Questions 
Relating  to  Neutrality 

The  Executive  Council 

Charter  Members 

Argentine  Republic:  Luis  M.  Draco 
Bolivia:  Alberto  Gutierrez 
Brazil:  Ruy  Barbosa 


1 


'Deceased. 


96 

Chile:  Alejandro  Alvarez 

Colombia:  Antonio  Jos£  Uribe 

Cotta  Rica:  Luis  Anderson 

Cuba:  Antonio  Sanchez  de  Bustamante 

Dominican  Republic:  Andres  J.  MoNTOLfo 

Ecuador:  Rafael  Arizaqa 

Guatemala:  Antonio  Batres  JAuregui 

Haiti:  J.  N.  Uger 

Honduras:  Alberto  MembreSo 

Mexico:  Joaquin  D.  Casasus* 

Nicaragua:  Salvador  Castrillo 

Panama:  Federico  Boyd 

Paraguay:  Manuel  Gondra 

Peru:  Ramon  Ribeyro* 

Salvador:  Rafael  S.  Lopez* 

United  States  of  America:  James  Brown  Scorr 

Uruguay:  Carlos  M.  de  Pen  a    ' 

Venezuela:  Josfe  Gil  Fortoul 


Eduardo  Bidau 
Carlos  Octavio  Bunge 
JoAQui:  V.  Gonzalez 
Eduardo  Sarmiento  Laspiur 


Titular  Members 
Argentine  Republic 


Bolivia 
Daniel  Sanchez  Bustamante 
Alberto  Diez  de  Medina 
Claudio  Pinilla 
Victor  E.  SanjInes 

•Deceased. 


97 

Braxil 
Clovis  Bevilaqua 
Lauro  MOller 
roorioo  octavio 

Mamoel  Cicero  Perergino  da  Silva 
Epitacio  Pessoa 


Luis  Barros  BorooSo 
Antonio  Hcneeds 
Eduaroo  Sdarez  Mdjica 
Eliodoro  YaSes 


Chite 


Colombia 
Nicolas  Esgcerra 
Francisco  Jos£  URRirriA 
Adolfo  Urdeta 
Jost  Maria  Gonzalez  Valencia 


RiCARDO  GiMENES 

Leonidas  Pacheco 
Manuel  Castro  Quesada 
C.  Gonzalez  Viques 


Coata  Rica 


Cuba 
Pablo  Desvernine 
OcTAVio  Giberga 
Fernando  Sanchez  de  Fuentes 
Rafael  Montoro 


Dominican  Republic 
Federico  Henriques  Carvajal 
Manuel  J,  Ihoncoso  de  la  Concha 
Manuel  Arturo  Machado 
Adolfo  Alejandro  Nouel 


Ecuador 
Alejandro  Cardenas 

GONZALO  S.  CdRDOVA 

Victor  Manuel  Penaherrgra 
Jos£  Luis  Tamayo 


Mariano  Cruz 
Jos£  Matos 
Alberto  Mencos 
Carlos  Salazar 


Guatemala 


Haiti 


Louis  Borno 
eomond  h^raux 
Pierre  Hudicourt 
Solon  M^nos 


Pausto  Da  VILA 
Alberto  Ucl£s 

RiCARDO  DE  J.  UrRUTIA 

Mariano  VAsquez 


Honduras 


Mexico 


Francisco  L.  de  la  Barra 
Manuel  Calero 
Victor  Manuel  Castillo 
Pedro  Lascurain 


Modesto  Barrios 
Alejandro  Cesar 
Pedro  Gonzalez 
Carlos  Cuadra  Pasos 
Maximo  H.  Zepeda 


Nicaragua 


RicARoo  J.  Alfaho 
Hahmodio  Aiuas 
EusEBio  A.  Morales 
Beusario  Poiuus 
Ramom  M.  Valdes 


Panama 


EcsEBio  Ayala 
Cecilio  Baez 
Antolin  Irala 
Fdlqencio  R.  Moreno 


Paraguay 


Isaac  Alzamora 
Victor  M.  Maurtda 
Solon  Polo 
Manuel  V.  VillarAn 


Peru 


Salvador 
Salvador  Gallegos 
Alonso  Reyes  Gderra 
Victor  Jerez 
Mandel  I.  Morales 
Francisco  Martinez  Scarez 

United  States  of  America 
Robert  Bacon 
Robert  Lansing 
Elihu  Root 
Leo  S.  Rowe 

Uruguay 
Daniel  Garcia  Acevedo 
Manuel  Arbelaiz 
Juan  Antonio  Buero 
Adolfo  Berro  Garcia 
Juan  Zorilla  de  San  Martin 


lUU 


Simon  Baiicel6 
Armimio  BcnuAS 
Jesdb  Rojas  Fernandez 
F.  Arkoyo  Pakbjo 


Venezuela 


Commendation  or  thi  Amirican  Initituti  op  Int»- 

NATIONAL  Law  by  OmCIAL    AUIMBLIII  OP  A    LiGAL, 

Political  and  Sciintipic  Natuki,  Compoiid  op 
RiPRiiiNTATivii  OP  All  thi  Amikican  Ripuilici. 


The  Third  Committee  of  the  CommiMion  of  American  Jurirti, 
which  met  at  Rio  de  Janeiro  to  consider  the  codification  of  inter- 
national law,  at  iti  meeting  of  July  16b  1912,  adopted  a  resolution : 

Commending  the  initiative  taken  to  found  an  American  In- 
stitute of  International  Law,  as  the  Committee  considers  an 
institutipn  of  this  kmd  of  great  usefulness  to  assist  in  the  work 
of  codification  that  the  statesmen  of  the  New  World  have  in 
view. 


The  Governing  Board  of  the  Pan  Americui  Union,  at  its  meeting 
held  in  the  City  of  Washington  on  December  1,  1915,  unanimously 
adopted  the  following  resolution : 

Whereas  the  official  inauguration  of  t..  lerican  Institute 
of  International  Law,  founded  in  Washing.  October  12,  1912, 
IS  soon  to  take  place  under  the  auspices  ot  the  Second  Pan 
American  Scientific  Congress,  and 

Whereas  said  Institute,  consisting  of  represenutives  of  every 
one  of  the  American  Republics,  recommended  by  the  Inter- 
national Law  Associations  of  their  respective  countries,  will  re- 
sult in  strengthening,  through  the  active  cooperation  of  jurists 
and  thinkers  of  the  whole  continent,  the  bonds  of  friendship 
and  union  now  existing  between  these  Republics,  and  will  con- 
tribute to  the  development  of  a  common  sentiment  of  inter- 
national justice  among  them. 

The  Governing  Board  of  the  Pan  American  Union 

Resolvts  to  tender  to  the  founders  and  members  of  the 
American  Institute  of  International  Law  a  vote  of  commendation 
and  encouragement  for  the  foundation  of  said  organization, 
which  represents  a  step  of  the  highest  importance  in  the  moral 
advancement  of  the  continent  and  in  the  strengthening  of  the 
sentiments  of  friendship  and  harmony  among  Uie  Republics. 


The  Second  Pan  American  Scientific  Congress,  which  met  at 
Washington  December  27,  191S-January  8.  1916,  adopted  the  fol- 
lowing resolution,  which  is  included  in  its  Final  Act: 

The  Second  Pan  American  Scientific  Congress  extends  to  the 
American  Institute  of  International  Law  a  cordial  welcome  into 
the  circles  of  scientific  organizations  of  Pan  America,  and 
records  a  sincere  wish  for  its  successful  career  and  the  achieve- 
ment of  the  highest  aims  of  its  important  labors. 


